According to a July 2007 report, our crude divorce:marriage ratio is 29.4 to 100. This means one divorce for every 3.4 marriages.

As Lord Denning has said, a pre-nuptial agreement or a divorce is the remotest idea in the couple's mind on the wedding day.

A pre-nuptial agreement is a contract between two persons planning to marry which governs the rights and liabilities of the parties if they should happen to get divorced or in the event one spouse predeceases the other. It determines the rights of parties to property, responsibility for debt and may even determine the quantum of spousal maintenance to be paid.

The superstitious will say that nothing can kill romance faster than a pre-nup. A pre-nuptial agreement is like a business arrangement or an insurance policy to help remove the emotional trauma following a break-up. Marriage is not just an emotional and physical union but it is also a financial union. Looking at it positively, a pre-nup can ensure the financial well-being of the marriage. The couple have seen it fit to make provisions for any irretrievable beakdown of their marriage in the future.

A pre-nuptial accord has been around for many years in European and Eastern cultures where tycoons and royal families have always made provisions for protecting their wealth. In a pre-nup, you cannot waive the rights to child-support payments. Neither can a will supersede the pre-nuptial agreement if it is more stingy but it can if it is more generous.

A pre-nuptial agreement protects your assets and may prevent expensive and acrimonious litigation. A pre-nup may be a prudent decision for a rich businessman who may wish to preserve what he has worked so hard to build.

In most cases the courts have upheld pre-nuptial agreements. In cases where there was no full disclosure or the agreement becomes substantively unfair at the time of divorce the courts will strike down the validity of such agreements. An agreement may be deemed unfair if the circumstances on which the agreement was based have changed beyond recognition that enforcement would not comport with the expectations of the parties .

The courts have to ensure that ex spouses do not end up becoming wards of the state. If one spouse's health and employability have deteriorated substantially during a marriage, the court may be reluctant to enforce the maintenance provisions of a pre-nuptial agreement.

The court will also invalidate a pre-nuptial agreement if

a) the said agreement sought to preclude spousal maintenance where the lesser earning spouse contracted a venereal disease from her husband resulting in expensive medical expenses;

b) the agreement sought to preclude spousal maintenance where the marriage has lasted more than 20 years and the wife had been jobless for some time and suffered from some physical and emotional disability.

The court will take into consideration the circumstances of the couple at the time of divorce or death of one party and if the unforeseen circumstances render the pre-nuptial agreement unconscionable then the court may not uphold the agreement.

Heng Cho Choon