In Part 2 of this Special Report on Money & Divorce, Dato’ Fion Wong, a partner of Shang & Co who is actively involved in matrimonial and family law, elaborates on the eligibility of nuptials and divorce settlements in Malaysia.
Adelina: If we assume more couples are staying together without getting married, seeing as marriage rates are dropping, would it be beneficial to them to draw up an agreement?
Dato’ Fion: Definitely, because in Malaysia, we don’t recognize any co-habitation relationships. But if you have an agreement drawn up, then we can actually draft it properly into a very legally binding agreement. This way, things can be spelled out more clearly.
A: That can be an alternative to a marriage contract?
DF: Yes, exactly. When you talk about a marriage contract, many people raise the question of whether it’s something like a pre-nuptial and post-nuptial. In fact, it’s not; it’s more than that. When people say “Oh no, nuptials are not enforceable in Malaysia”, that’s totally wrong, because in any other jurisdiction, say in either here or Singapore, nuptials are recognised provided they’re drafted in a way that is enforceable in court. For example, you cannot control all the children, saying that because I’m the father and I’m rich, I shall have custody of the children. This kind of contract, where you try to overwrite the court’s jurisdiction and power, is not valid. But nuptials are certainly enforceable depending on how you draft them.
A: You would recommend nuptials to couples?
DF: Yeah, because many people, especially women, think that “oh, when it comes to nuptials, you’re not going to give me anything during (the) divorce”, or “oh, your family is rich, so you want to come up with nuptials to take everything from me (if we get a divorce).”But, in truth, it’s the other way around. Because properties inherited from the family are not matrimony assets, the spouse has to protect herself in some way. Nuptials are an agreement to see how one spouse can take care of the other for an entire lifetime, in the event the latter does not commit adultery.”
A: So it would actually benefit women more?
DF: Yeah. It’s a taboo, I think, because of how nuptials are (often wrongly) portrayed in movies.