Nuptial agreements between couples determine what will happen if the parties end up separated or widowed. Prenuptial agreements are made before the marriage and function like a contract between the couple covering practical areas such as maintenance, custody-related issues if there is a child involved, as well as the ownership and division of property.

Postnuptial agreements are written during the marriage and are a more accurate and updated reflection of the couple’s attitudes and intentions after the marriage. It is also presumed that postnuptial agreements are made after the couple have fully understood the responsibilities and expectations of married life. Because of this difference, the courts will generally give more weight to postnuptial agreements with a higher likelihood of it being enforced.

Difference Between Postnuptial Agreement and Deed of Separation

In a previous article, we explained what a Deed of Separation is and how to get one. The difference between that and a postnuptial agreement is that a deed of separation is for couples that already have the intention to separate, but have yet to meet the conditions for divorce

A postnuptial agreement can be made by any couple, even if their relationship is fine and they have no intention to separate. 

The other difference is that a Deed of Separation is a legally binding agreement that kicks in automatically once it’s signed whereas a postnuptial agreement may only be enforced by a court decision. The court may also choose to take the postnuptial agreement into account when deciding on the couple’s ancillary matters such as maintenance and child custody.

In the unfortunate event where a spouse dies, the postnuptial agreement also serves a secondary function as a will. The only difference is that while a will applies to anyone related to the deceased, the postnuptial agreement will only be applicable to the surviving spouse.

Common Terms for Postnuptial Agreements

There isn’t a standard template or list of items to include in a postnuptial agreement and generally, the terms will be up to the parties drafting it. Not all postnuptial agreements will be automatically enforced, especially if they contradict established family laws.

Some of the more common postnuptial agreement terms include:

  • Allocation and division of property and other assets after divorce
  • Custody, care and control of the child after divorce
  • Division of marital debt after divorce
  • Maintenance and duration of payments
  • Allocation of assets if a spouse dies during the marriage

While it is technically possible for you to draft a postnuptial agreement by yourself, it is advisable to hire a lawyer as they will be able to draft an agreement that complies with legal requirements, while providing timely and accurate advice to ensure the agreement is watertight and does not run afoul of any established family laws.

The lawyer will also be able to help you navigate more complex terms that will require calculation of liabilities such as marital debts. Due to the sensitive nature of postnuptial agreements, it is always advisable to carefully consider the terms and arrangements before finalising it.

While a couple will only need a single postnuptial agreement, each party may hire their own respective lawyer, or hire the same lawyer to draft the agreement, provided both parties are agreeable to all the terms of the agreement.

Engaging a Lawyer

If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.

Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.

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