Post-Nuptial Agreement in Malaysia. Is It Valid?

Post-Nuptial Agreement in Malaysia. Is It Valid?

A post nuptial agreement is essentially an agreement between spouses to dictate what are the agreed terms to their marital arrangements after the registration of their marriage under the law. Getting a post-nuptial agreement in Malaysia may seem to be a taboo topic even in this modern society. So, what can you state in the post-nuptial agreement in Malaysia. Is it valid?

Pre-Nuptial & Post-Nuptial Agreement

You may have heard of pre-nuptial agreement (different from a post-nuptial agreement) where pre-nuptial agreement is specifically for couples to protect their respective assets in the event of a divorce. Pre-nuptial agreement is signed before the registration of marriage.

In the event if spouses decided to enter into an agreement about their marital affairs after the registration of their marriage, the agreement shall be termed as post-nuptial agreement as mentioned. For a post-nuptial agreement, both the husband and wife can freely negotiate and come to an agreement on any terms necessary in relation to their marital affairs as long as it is not illegal and fair.

Is Post-Nuptial Agreement Legally Valid?

In that case, you may be asking if a post-nuptial agreement is valid in Malaysia?

The short answer is, yes.

Marital agreements between non-Muslim spouses are recognised specifically under Section 56 of the Law Reform (Marriage and Divorce) Act 1976. Marital agreement entered by parties shall be recognised under the law and legally valid as long as it is entered voluntarily by consenting parties.

What Is in Post-Nuptial Agreement?

So, what are the terms you can include into a post-nuptial agreement?

Again, both husband and wife can come to an agreement on any terms dictating their marital affairs such as issue of custody (as to who should have the custody in the event of a physical separation before a divorce), agreed amount of alimony & maintenance of children, division of properties, and others.

Interestingly in this recent case, the High Court has decided and reaffirmed that post-nuptial agreement is legally valid under the law at the time of writing this article.

Furthermore, in the same case, the High Court also acknowledged that the Court will not disturb the agreement between both parties since the agreement is voluntarily entered into by two consenting adults. This includes the fact that the agreement clearly indicated that the husband is allowed to maintain a mistress during the course of marriage. This is because maintaining a mistress is not illegal for non-Muslims though it may be viewed as immoral or indecent.

In a nutshell, it is important that both spouses understand the terms that they are agreeing to before getting a post-nuptial agreement. This is regardless if they are getting the post-nuptial agreement during a happy or unhappy marriage. Hence, it is best to seek for legal advice from a divorce & family lawyer to understand your rights better.

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