Agreements between Husband and Wife. Which prevails? Oral or Written? What’s the position here in Singapore?
In LIAN HWEE CHOO PHEBE v TAN SENG ONG [2013] SGCA 37,
Facts
The husband refused to accede to the request on the ground that the parties had agreed in 1985 to divide their matrimonial assets and cease community of assets, with both parties thereafter having no claim to future assets acquired by the other during marriage (the Agreement). This was the first time that the husband had alleged the existence of the Agreement. There was no signed agreement between parties.
The Court of Appeal ruled as follows
If in any particular divorce proceedings it is established that an agreement falling within s112(2)(e) exists, that agreement is only one of the factors the court has to consider when deciding how the matrimonial assets are to be divided.
To determine whether an agreement of the type specified in s 112(2)(e) of the Charter exists, two elements must be met: first, there must have been an agreement with respect to the ownership and division of matrimonial assets; and second, the aforesaid agreement must have been made in contemplation of divorce.
The Court Held: We found that there was no agreement for the disposition of assets made in contemplation of divorce within the meaning of s 112(2)(e) of the Charter.
The case also clarified that a pre-nuptial agreement would fall within the section and be considered in the distribution of assets in the event of the divorce, as long as both parties intended for the agreement to be decisive.
In Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] SGCA 37, the parties managed to reach a settlement agreement during mediation, which was duly signed. However, the wife changed her mind later. The Court of Appeal eventually decided that the settlement agreement did indeed fall within Section 112(2)(e), and that it ought to be followed. An important consideration was the fact that the agreement had been made as a result of the mediation process.
What can be learnt from these two cases?
Should you decide to make an agreement regarding the distribution of matrimonial assets, it is vital to ensure that both parties intend the agreement to be binding. It would be immensely helpful to have the agreement in written form, with the intentions of both parties clearly stated. Pre-nuptial and post-nuptial agreements are good examples of binding agreements.
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