Does a Prenuptial Agreement Have Legal Effect?

Does a Prenuptial Agreement Have Legal Effect?

There is a misconception that a prenuptial agreement is not enforceable in Malaysia. However, the courts may consider prenuptial agreements when determining the distribution of matrimonial assets, so long as the agreement is not contrary to anything in the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”).

A prenuptial agreement is essentially a contract, similar to other agreements, that contains specific terms and conditions. This contract is agreed upon by both parties before entering into marriage, outlining how assets, child custody, and alimony would be handled in the event of a divorce. Whether or not the agreement is legally recognised depends on whether the court accepts its content.

Under Section 56 of the LRA 1976, parties for divorce is allowed to present the prenup agreement for the judge's consideration. However, the final decision on matters such as child custody, alimony, and division of matrimonial assets rests with the judge.

The Court will distribute the matrimonial assets and determine the child custody and alimony based on the provisions of the Law Reform (Marriage and Divorce) Act 1976 and the best interest of the children, ensuring that the child’s welfare and needs are prioritised in any divorce arrangement.