Wealthy families across Asia are turning to
prenuptial agreements at an accelerating rate.
Singapore’s Judicial College confirmed an uptick in prenuptial agreement
enquiries in 2026. Family lawyers
describe them as risk-management tools.
Clients arrive at first meetings having already googled the concept,
consulted friends who have one, and formed strong views about what they want
protected. All of that is
reasonable. Here is what most of them do
not understand: A prenuptial agreement
in Singapore is not a contract; it is a
submission to the court.
What is a Prenuptial Agreement
Under section 112 of the Women’s Charter, the
court divides matrimonial assets in proportions it considers just and
equitable. A prenuptial agreement is one
factor in that assessment. It is not
binding. It is not determinative. It is persuasive at best — and persuasive
only if the court decides it should be.
The Singapore Court of Appeal established this
in TQ v TR [2009] SGCA 6. The
parties — a Dutch couple who had married in the Netherlands — signed a
prenuptial agreement before a Dutch notary.
It covered the division of matrimonial assets and provided that there
would be no community of property between the spouses. The Court of Appeal upheld the
agreement. But it did so after weighing
the governing law, the circumstances of signing, the fairness of the terms, and
what had changed during the marriage. The agreement held because the court decided
it should hold. Not because it was a
binding contract.
A 2024 district court decision illustrated the
gap between intention and outcome. A
couple agreed in their prenuptial agreement that only 50 per cent of a
matrimonial flat would be treated as a matrimonial asset. The judge included 100 per cent. The court’s view of fairness overrode the
private agreement. The couple had signed
the document, negotiated the terms, and believed themselves protected. The court disagreed. This is not a defect in the system. It is the system.
Jurisdictions that give prenuptial agreements
greater formal weight are not necessarily safer. The United Kingdom’s Supreme Court addressed
this in Radmacher v Granatino [2010] UKSC 42. Katrin Radmacher, a German paper industry
heiress, signed an ante-nuptial agreement in Germany before her marriage to Nicolas
Joseph Jean Granatino, a French banker who later left the City to pursue
research at Oxford. The agreement
provided that neither party would benefit from the other’s property on
termination of the marriage. The High
Court awarded Granatino over £5.5 million — which would have funded a London
home and an annual income of £100,000 for life.
The Court of Appeal reversed that.
The Supreme Court dismissed his appeal by eight votes to one. Granatino did not receive £5.5 million
because the prenuptial agreement said so.
He received less because a panel of judges decided the prenuptial
agreement was fair to enforce. The prenuptial
agreement was the input. The court was
the output. Remove the court’s agreement, and the prenuptial agreement is an expensive piece of paper.
Then there is the case that removes all
ambiguity. Jeffrey Preston Bezos,
founder and executive chairman of Amazon, married MacKenzie Scott in 1994. They had no prenuptial agreement. Amazon went public in 1997. They built one of the largest private
fortunes in human history together. They
divorced in 2019. Scott received 25 per
cent of Amazon’s shares — US$38 billion at the time of settlement. Bezos retained 75 per cent and voting
control. Community property law in
Washington State governed the split. The
largest divorce settlement in recorded history was the direct consequence of
there being no prenuptial agreement.
The question is not whether to have a prenuptial
agreement. The question is whether a prenuptial
agreement alone is sufficient. It is
not.
Why the Prenuptial Agreement
Fails at Its Most Important Moment
The prenuptial agreement’s structural weakness
is timing. It captures a snapshot of
assets at the point of marriage.
Everything that follows — business growth, investment returns, property
appreciation, inherited wealth received during the marriage — enters a legal
grey zone where the court’s discretion governs, not the agreement. Courts in Singapore and Hong Kong treat
assets acquired during the marriage as matrimonial in character by
default. The prenuptial agreement may
ring-fence pre-marital assets. It cannot
reliably ring-fence what those assets become.
A client who arrives at marriage with a S$5 million portfolio, grows it
to S$25 million over twenty years, and then divorces will find that at least
some portion of that growth is characterised as a matrimonial asset — earned
during the marriage, commingled with matrimonial effort and income, and
therefore subject to division.
The second weakness is enforceability under
changed circumstances. Courts scrutinise
prenuptial agreements for fairness at the time of enforcement, not at the time
of signing. A prenuptial agreement
signed at 28, before children, before a business was built, before one spouse
sacrificed a career to manage the family — that prenuptial agreement may look
very different to a judge assessing it at 52.
The court has the power to vary or disregard it if enforcing it produces
an outcome the court considers unjust.
The third weakness is that the prenuptial
agreement creates obligations without funding them. A well-drafted agreement specifies what the
wealthier spouse will pay if the marriage ends — maintenance obligations,
lump-sum settlements, property buyouts in lieu of business equity. None of that specifies where the money comes
from. On divorce, the wealthier party is
simultaneously navigating asset division, legal costs, business disruption, and
a potential liquidity event in which they are forced to convert illiquid assets
to cash at an inopportune moment. The prenuptial
agreement told them what they owed. It
did not tell them how to pay it.
Three Propositions: What
Life Insurance Does That the Prenuptial Agreement Cannot
The court’s discretion cannot be contracted
away. What can be done is build
financial structures that sit outside the matrimonial asset pool. Life insurance, properly structured, is one
of the most effective instruments for doing that.
One: The Policy Removes
Assets from the Pool Before the Marriage Begins
A whole life or universal life policy assigned
to an irrevocable trust is not a matrimonial asset. It does not form part of the estate on
death. It does not appear in the asset
pool a court is asked to divide on divorce.
This matters because the prenuptial agreement’s weakest point is its
treatment of assets held jointly or accumulated during the marriage. Pre-marital wealth, once it has been used to
fund shared living, invest in a jointly-managed portfolio, or contribute to a matrimonial
home, can lose its protected character.
Commingling is the technical term.
What it means in practice is that money the client believed was
ring-fenced has become matrimonial by the time the court examines it.
A life policy assigned under the Trustees Act,
or written in trust under section 73 of the Conveyancing and Law of Property
Act, passes to named beneficiaries entirely outside the estate. It bypasses probate. It bypasses the Women’s Charter’s matrimonial
asset framework. The court is not asked
to consider it because it does not belong to either party — it belongs to the
trust. The transfer of beneficial
ownership happened at inception.
Whatever the marriage produces, whatever the divorce demands, the trust
asset is not in the room. This is not
aggressive planning. It is structuring
the ownership correctly from the beginning, before the marriage creates the
legal complications the client is trying to avoid.
Two: The Policy Creates a
Guaranteed Asset That Cannot Be Contested
The prenuptial agreement protects what you
have. It cannot guarantee what you will
have when you need it. A family business
owner who signs a detailed prenuptial agreement protecting his equity stake has
protected that stake as valued on the day of signing. The business grows. Appreciation during the marriage is a
matrimonial asset. The court divides the
growth. The prenuptial agreement covered
the starting value. It did not cover the
trajectory.
Furthermore, the business itself may be
illiquid, disputed in valuation, and impossible to divide without a forced sale
at the worst possible time. Divorce
proceedings for HNW individuals routinely turn into valuation wars. Competing expert witnesses present competing
valuations of the same business. The gap
between them can be tens of millions of dollars. The prenuptial agreement specified that the
business would not be divided. The
court, exercising its discretion, may decide otherwise — particularly if the
non-business-owning spouse contributed to its growth, managed the household to
enable the owner’s focus, or was otherwise integrally involved.
A whole life policy does none of that. The sum assured is defined in the contract
with the insurer. It is not subject to
market performance, business valuation disputes, or expert witness
disagreements. It is not revalued every
year. It does not go up and down with
the MSCI World. On the event specified
in the contract, it pays the amount stated.
For clients with significant illiquid assets — private equity stakes,
founder-held shares, family property spanning multiple jurisdictions — the life
policy provides a liquid, guaranteed, uncontestable asset. On death, the estate does not need to sell
the business to fund estate obligations.
The policy pays. The assets
transfer intact. On divorce, the
trust-held policy is not on the table. The
prenuptial agreement handles the contestable.
The policy handles the incontestable.
Both are necessary. One without
the other is incomplete.
Three: The Policy Pre-Funds
the Obligation the Prenuptial Agreement Creates
A well-drafted prenuptial agreement specifies
what the wealthier spouse will pay if the marriage ends. Maintenance obligations. Lump-sum settlements. Property buyouts in lieu of a share in the
business. These are deliberate choices,
negotiated before the marriage, intended to provide certainty for both parties. The prenuptial agreement creates the
obligation. It does not fund it.
Consider a 44-year-old business owner whose prenuptial
agreement specifies a S$3 million lump-sum settlement to his spouse on divorce,
in lieu of any claim on his business equity.
He divorces at 54. The business
is worth S$20 million. He agreed to pay
S$3 million instead of surrendering a stake worth multiples of that. The prenuptial agreement worked — the
business is protected. The question is
where the S$3 million comes from without liquidating business assets, drawing
down an investment portfolio at the wrong point in the cycle, or borrowing
against assets during a period of maximum personal and financial disruption.
A universal life policy with accumulated cash
value, or a paid-up whole life policy assigned for this purpose, provides the
liquidity. The obligation is pre-funded
over the life of the policy. At the
moment the settlement is due, the client does not need to scramble. He surrenders the policy, draws the cash
value, and pays. The business continues
operating. The portfolio continues
compounding. The settlement is funded
from the instrument that was built for exactly this purpose.
This is also relevant on death. The prenuptial agreement may specify
obligations that survive the marriage — maintenance for a former spouse, or
provisions for children from the marriage.
A life policy ensures those obligations are met without eroding the
estate intended for other beneficiaries.
The prenuptial agreement told the client what he owed. The policy ensures he can pay it without
destroying what he built.
The Position
A prenuptial agreement is a letter of intent
addressed to a judge. It tells the court
what the parties agreed and asks the court to respect it. Courts in Singapore, Hong Kong, and England
will often do that — if the agreement was freely signed, fully understood,
fairly drafted, and remains fair at the time of enforcement. None of those conditions is within the
parties’ control once the marriage has begun.
Life insurance, structured correctly and placed in trust early, operates
outside the court’s discretion. The
asset leaves the estate before any dispute arises. The benefit is defined and guaranteed. The obligation, when it comes, is pre-funded.
The prenuptial agreement is the opening
argument. The structure is the actual
protection. Wealthy families who rely
solely on a prenuptial agreement have outsourced their financial security to
judicial discretion. That is a strange
place to park a multigenerational wealth strategy. Build the structure.
Terence
Nunis | Executive Chairman, Equinox Zenith | Author, The 1% Playbook: The
Billionaire Cheat Code
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