A prenuptial agreement and failed marriages have been taboo in families, especially in Asian countries such as Malaysia.
This article will explain what a prenuptial agreement is, whether it is enforceable in Malaysia, and what you can do if you want to have one.
Meaning and Purpose of Prenuptial Agreement Malaysia
Couples have been asking about ‘prenup meaning’ or ‘prenuptial meaning’. A prenuptial agreement is a contract signed between couples in contemplation of marriage, that is, before they get married. It is usually intended to have an effect after marriage if the couple decides to divorce or separate later on. Sometimes, it is referred to as prenups or premarital agreements.
It is different from a post-nuptial agreement, which is a contract signed by the couple during marriage. These usually include a deed of separation/separation agreement or maintenance agreement and are usually signed in contemplation of divorce.
The reason and purpose of this prenuptial agreement are usually for a few things:
Division of assets: To ensure the personal wealth of each husband and wife, including their inheritance, is protected from any claim.
Child custody and alimony: To ensure the child of the marriage grows up in a healthy environment.
Spouse alimony: To ensure that the couple, especially the wife, has the financial support from the other half to sustain life post-marriage.
However, the concept of having this type of contract has an unpopular view among the general public for both men and women, as marriages are traditionally viewed as meant to last for a long time with the traditional wedding vows of the marriage pact “till death do us part.”.
Furthermore, there is an issue with this contract, which is its legality: Is this contract valid in Malaysia? This will be discussed further in the next section.
Legality and Enforcement
Under the Contracts Act 1950, any contract is enforceable in Malaysia as long as the parties sign the agreement with consent. Furthermore, the contract must not breach any law or be against public policy.
On that ground, the position is that marriage contracts, including prenuptial contracts are valid legal contracts and enforceable as long as they comply with the laws in Malaysia, specifically the family law in our country.
The main law for divorce and family law in Malaysia is the Law Reform (Marriage and Divorce) Act 1976 (‘LRA’). It governs marriage and divorce procedure in Malaysia, where the High Court of Malaya has the jurisdiction and power to hear these cases.
Under Section 47 of LRA, our courts, while deciding on the cases, are guided by the common law in England. That means our courts are to note, respect, and consider the decisions of court case law in the United Kingdom and ensure their decisions align with the principles there.
In the United Kingdom, one of the family laws is the Matrimonial Causes Act 1973. Under Section 25 of the Matrimonial Causes Act 1973, the UK courts can consider the conduct of the couples in making any order in family matters. The related paragraph of section 25 reads:
‘(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’;
With this section and phrase, the courts can consider any contract made between the couples in deciding on any family matters. Based on this section, the courts in the United Kingdom have also ruled that the prenuptial agreement is enforceable and were guided by it in deciding some of the cases.
On the contrary and in practice, there are no similar sections in our country, which leads us to consider the situation in Malaysia.
Position In Malaysia
In relation to our country, under Section 56 of the LRA, any contract made between couples can be referred to the court before or during matrimonial proceedings, and the Court can decide on the effect of these contracts.
What it means is that the couples can request the Court to decide on the enforceability and effect of these agreements under s.56 LRA and once the Court has decided, it will also affect the other terms of the divorce.
The main terms that are usually contested in divorce proceedings (initiated through a divorce petition) are the division of matrimonial assets, child arrangements, and spouse alimony, which will be discussed in detail below, and also how a prenuptial agreement Malaysia can influence them.
Division of Matrimonial Assets
Under Section 76 of the LRA, matrimonial assets include assets acquired after marriage/during wedlock, or before marriage by one party that have been substantially improved during the marriage by the other party or by their joint efforts. For instance, it includes houses, bank accounts, and cars.
Under Section 76 too, before the Malaysian court orders the division of marital property, it is to have regard to factors and considerations such as:
(a) contributions made by each spouse in money, property or work towards acquiring the assets or payment of expenses for the benefit of the family;
(aa) contributions made by the other spouse who did not acquire the asset to the welfare of the family by looking after the family;
(b) any debts owing by either spouse that were contracted for their joint benefit;
(c) the needs of the minor children, if any, of the marriage;
(d) the duration/term of the marriage,
and subject to those factors, the court shall incline towards equality of division.
The court will consider the above factors in dividing matrimonial assets, and a prenuptial agreement in any form won't override this section on the division of matrimonial property. However, it will be a guide for the Court to consider the couple’s contributions to the ownership of the assets and others’ intentions.
Alimony
Under Section 78 of the LRA, courts have the power to order the payment of spousal maintenance that is usually paid by a man to his wife. The courts will consider factors such as the means and needs of the parties (income and expenses).
The courts will also consider responsibility for the breakdown of marriage, such as the misbehaviour and conduct of the spouses. Besides that, under Section 80 of the LRA, the court can consider any contract, including a prenuptial agreement between them for payment of maintenance in a lump sum, and once this contract is approved by the court, then it is a good defence for any claim for maintenance.
Child custody
Under Section 88 of the Act, the court has the power to order which parent the custody of the child to be given, and in deciding this, the court is to consider the welfare and interests of the child as the main factor.
However, the court can also consider the opinion of each parent and child. Thus, any wishes and statement expressed by the parent in any prenuptial agreement through their words will have implications and affect the decision of the court in awarding custody of the child.
Furthermore, under Section 92 of the LRA, both parents—the wife and husband must maintain the children by paying for their accommodation, clothing, food, and education.
While deciding on this child maintenance, the courts will consider reasons such as the needs and means of the parents (assets, income, and expenses). Any agreement for custody & maintenance of a child, including any prenuptial agreement, can also be considered by the courts here.
Any order, including financial orders made by the Court for child custody and maintenance and spousal alimony, can be varied when there is a material change in circumstances
Opinion
Even though the family and divorce law in Malaysia is silent on any prenuptial agreements, on the basis that the LRA has several provisions for agreement, the courts are open to accepting such contracts in deciding on family cases.
It is our view that nuptial agreement, including prenuptial agreements, settlement agreements and any financial agreements, are enforceable in Malaysia as long as they comply with the requirements of the laws, with the main ones being the Contracts Act 1950 and LRA.
However, these marital agreements will not override the law but instead, show the intention of the couples on these matters and be directions and a guide to the courts in deciding on the cases, especially in contentious divorce proceedings. The weight or influence the court will place on these contracts is up to the exercise of discretion and autonomy of the courts.
On the other hand, the divorcing parties can opt for a joint divorce petition where they are able to discuss and agree to the divorce terms in reaching a settlement with the assistance of a Malaysian divorce lawyer.
Preparing Prenuptial Agreement
We recommend that you follow the below steps in preparing these contracts:
Terms to include: Think of what terms you would like to include, considering the situation and circumstances that you are in.
Seek legal advice: Get a legal opinion from a Malaysia law firm for guidance. This is to ensure that any terms that you want to include are enforceable in Malaysia.
Record in writing: Engage a divorce lawyer to prepare this contract. After that, the parties will sign the agreement after understanding the terms.
Conclusion
Prenuptial agreement Malaysia is important to show the spouse's intention on important family issues before they marry. However, it should be prepared with professional assistance, such as by a lawyer
If you have any question or need any help with these, do contact us. Our team and divorce lawyer in Kuala Lumpur will assist and help you.
Frequently Asked Questions
1. What is in a postnuptial agreement?
A postnuptial agreement is a contract that is signed between the couple during marriage and the object is for it to have effect in the event of a future divorce. An example is a deed of separation. It usually includes terms on the division of matrimonial assets, spouse alimony, and child arrangements.
2. Is prenuptial agreement valid in Malaysia?
A prenuptial agreement is valid and enforceable in Malaysia as long as it complies with the laws in our country and does not conflict with the main family and divorce law, which is the Law Reform (Marriage and Divorce) Act 1976.
3. What is Section 56 of the LRA?
Section 56 of the LRA is a provision that allows the spouses, before or after the initiation of divorce proceedings, to refer any contract, including a prenuptial agreement, to the Court, and the Court can decide on the effect of the contract.
