SINGAPORE Law and Practice Contributed by: Loh Wai Mooi, Wang Liansheng, Petrina Tan and Vaithieiswariy Kumar, Bih Li & Lee LLP
2.6 Cohabitation: Division of Assets Between Unmarried Couples Singapore does not recognise de facto relationships or cohabitation under the matrimonial law regime. For unmarried couples, the assets would be governed by principles of contract, trust or property law. Parties also do not acquire additional rights by virtue of the length of cohabitation. Children born of unmarried couples are considered illegitimate. Assets acquired during premarital cohabitation are not subject to division unless they have been trans ‑ formed into matrimonial assets by meeting certain statutory criteria. Similarly, the court should not take into account parties’ indirect contributions during the period of premarital cohabitation when determining the extent of each party’s contribution to the marriage ( USB v USA and another appeal (2020) 2 SLR 588). 2.7 Enforcement of Financial Orders A party may apply for the following enforcement orders: • an enforcement order for attachment of debt; • an enforcement order for seizure and sale of prop ‑ erty; and • an enforcement order for delivery or possession of property. Naturally, if the other party fails to comply with a court order, then an application for committal may also be commenced against the defaulting party. A party may also apply for the following to enforce maintenance orders: • sentencing of the respondent to imprisonment; • a warrant directing that maintenance arrears be levied in the manner provided by law for levying fines imposed by a magistrate’s court; • an enforcement order for attachment of debt, which could include an order for the respondent’s employer to deduct the portion of maintenance from the respondent’s salary and make direct pay ‑ ment to the applicant; • an order for the respondent to give a banker’s guarantee against future defaults;
ties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce” (Section 112 (2)(e) of the Women’s Charter 1961). Ulti ‑ mately, the court will decide how much weight ought to be accorded to the prenuptial or postnuptial agree ‑ ment. In the case of postnuptial agreements, the court may accord them more weight than prenuptial agreements in the exercise of its discretion ( TQ v TR (2009) 2 SLR (R) 961). Nevertheless, how much weight the court accords to such agreements will depend on the pre ‑ cise circumstances of the case – for example, whether the parties knew the legal consequences of entering into the agreement and whether the circumstances have changed since the parties entered into the agree ‑ ment. The court is unlikely to accord significant weight to a prenuptial or postnuptial agreement if doing so would result in an outcome that is not just and equi ‑ table. For prenuptial agreements relating to children’s issues, the court would be especially vigilant and would be reluctant to enforce agreements that are not appar ‑ ently in the best interests of the child or the children concerned ( TQ v TR (2009) 2 SLR (R) 961). The paramount consideration in determining custody, care and control, and access arrangements for a child/ children is the welfare of the child/children. Therefore, prenuptial agreements relating to the custody, care and control of a child are presumed to be unenforcea ‑ ble unless it can be clearly demonstrated by the party relying on the agreement that the agreement is in the best interests of the child/children involved ( TQ v TR (2009) 2 SLR (R) 961). If a prenuptial agreement is entered into by foreign nationals and governed by (as well as valid accord ‑ ing to) a foreign law (and assuming the foreign law is not repugnant to the public policy of Singapore), then the court may afford significant weight to the terms of that agreement, in order to avoid forum shopping. However, the court has maintained that it retains the overall discretion in determining the division of mat ‑ rimonial assets.
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