An Insight On The Drafting Of A Pre-nuptial Agreement

Author: Edmund Choi

A, who possesses a wealth of assets and properties wishes to marry B (soon to be wife) in the latter stages of his life. However, A is fearful should there be a divorce, a huge dispute would erupt on the division and distribution of assets and properties and business that would potentially involve a huge lawsuit and place a lot of stress on all parties involved. A visited our firm and inquired on how could he possibly overcome this concern in safeguarding the interest of all relevant parties, especially his family. This is where a pre-nuptial agreement would come in handy. You may be wondering, is a pre-nuptial agreement actually valid and binding under the relevant laws of Malaysia? Prenuptial agreements are a grey area in the Malaysian legal system in relation to divorce and matrimonial proceedings. This is our short insight on prenuptial agreements in Malaysia.
Ultimately, the Courts will have the last say in granting any orders and exercising powers in relation to the division of matrimonial assets and maintenance in light of divorce proceedings. Relevant statutory provisions, namely s.76,77,78,79 LRA 1976 will be the point of reference for the Courts. 
However, we are of the view that the Courts also have wide discretionary powers in considering any agreements made jointly between the parties before the marriage. For example, the prenuptial agreement would have outlined every detail and apportionment of assets, properties and maintenance.
The prenuptial agreement can be referred to the courts and be varied accordingly under the relevant statutory provisions of the LRA. This is provided under s. 56 LRA 1976, in which an application is to be made either before or after the presentation of a petition for divorce to refer the Courts to the arrangement or agreement made arising out of the contemplated divorce proceedings or divorce proceedings. It would be best to obtain the opinion and view of the Courts on the reasonableness of the arrangement or agreement, and recognize the prenuptial agreement as a binding agreement between parties in the division of matrimonial assets. 
Back to our story, A has informed us that what if he does not wish to give the future wife a single penny or any home or assets. We have advised him against it as it is the duty of A as a husband to provide and ensure the well-being of B. The Court will discard the prenuptial agreement should it be unreasonable or unfair to the wife, which is not the purpose of drafting the prenuptial agreement.
The prenuptial agreement is an effective tool in persuading the Courts to consider the intention of spouses in consideration of their respective financial positions, subject to the provisions of the LRA 1976 and the jurisdiction of the Courts. Rest assured, our expert team will ensure that the prenuptial agreement drafted is of the highest value and quality in safeguarding the interest of you and your family.  
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