SINGAPORE Law and Practice Contributed by: Sim Bock Eng, Josephine Choo, Aw Wen Ni and Vincent Ho, WongPartnership LLP
maintenance to be paid to the wife and the children), prenuptial and postnuptial agreements are one of vari - ous other factors to be considered by the courts. In its scrutiny of an agreement, the court may also consider whether the parties acted on legal advice and were provided full disclosure of information relating to the matrimonial assets or other relevant information prior to entering into the agreement. On the division of mat - rimonial assets, the court is ruled by the principle of whether the division is fair and equitable. There is a presumption that any provisions relating to children – whether relating to their custody or main - tenance – are not enforceable unless they are in the best interests of the children (see AUA v ATZ [2016] 4 SLR 674). On issues relating to maintenance for the wife and the division of assets, the court considers the provisions in the prenuptial agreement to be an aid to the courts, and will uphold such provisions if they are fair and just. The court will scrutinise postnuptial agreements against the provisions of the Women’s Charter 1961 and will uphold the postnuptial agreement if the provi - sions are consistent with the principles in the Wom - en’s Charter 1961. Trusts The Singapore courts have had occasion to consid - er the position of the assets held in trusts set up by a party, whether before or after marriage. The case precedents are clear that a trust that was properly set up before the marriage is likely to be upheld, and the trust assets are not likely to be treated as matrimonial assets for division (see BG v BF [2007] 3 SLR(R) 233). Where a trust is set up during the marriage, the court will take several factors into account in decid - ing whether or not to uphold the trust. One of the main touchstones is the degree of the party’s reten - tion of beneficial ownership and/or control over the settled assets. In Gaye Williams Nee Marks v Cary Donald Williams [1993] SGHC 190, while a trust was established by the husband for the benefit of his three sons, the husband had the power to direct the trus - tees to remove or add any beneficiary, and the power to remove the trustees. The Singapore court was of the view that, having regard to the husband’s exten -
sive powers, the trust should be disregarded, and the husband was treated as the owner of the trust assets for the purpose of determining his financial ability to provide for his wife and children. Where the court finds that the intention of the settlor spouse is to deprive the other spouse of the assets or a right to maintenance, or that the settlor spouse retained control and/or beneficial ownership of the trust assets, the trust is less likely to be upheld; if it is upheld, the court nevertheless retains the right to notionally place the value of the trust assets back into the pool of matrimonial assets (see TQ v TR [2009] 2 SLR(R) 961 and UKA v UKB [2018] 4 SLR 779). Where the beneficiaries of the trust are the children of the marriage, the Singapore courts will be more likely to uphold the trust, proceeding on the premise that both parents are under a legal obligation to provide for and maintain the children of the marriage (see AQT v AQU [2011] SGHC 138). 2.5 Transfer of Property Generally, the transfer of property in Singapore does not result in any tax implications for the transferor or the transferee, except for stamp duties that apply only to the transfer of Singapore immovable properties or shares of Singapore-incorporated companies and shares of foreign-incorporated companies that are registered in a Singapore branch register. Singapore does not have capital gains tax. However, if the trans - feror is perceived by the Singapore tax authorities to be a trader of the property that is being transferred, income tax may be levied on the profit made by the transferor in such a transfer. Stamp duties are payable for the transfer of Singapore immovable properties, shares of Singapore-incorpo - rated companies and shares of foreign-incorporated companies that are registered in a Singapore branch register, unless such property is transferred pursuant to a distribution under a will or the laws of intestacy, or is transferred to a spouse pursuant to an order of court made in divorce proceedings. 2.6 Transfer of Assets: Vehicle and Planning Mechanisms For wealth and succession planning, assets may be transferred by way of gifts or inter vivos trusts during
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