This morning on LightFM (yes, I listen to that radio station every morning), the discussion was whether one would consider entering into a Prenuptial Agreement before getting married.
The DJs (one of them is a law graduate) were discussing the issue without addressing the fact the prenuptial agreement not really "legal" in Malaysia!
It is definitely no illegal. But as our Malaysia divorce law is governed by the Law Reform (Marriage and Divorce) Act 1976 (Act 164), the decision of the courts are bound by the statute, needless to say, Prenuptial Agreement is not part of the statute!
Hence, when a couple get a divorce and came to the court to ask for division of their matrimonial assets, the judges' decision will not be bound by any Prenuptial Agreement entered between the parties. Because section 76 of the LRA 1976 gave power to the court to order the division of matrimonial assets. The considerations to be regarded are provided under section 76(2) and Prenuptial Agreement is not part of these factors. Therefore courts may look into a Prenuptial Agreement but only as reference.
As a matter of fact, section 80 of the LRA 1976 expressly provides that an agreement for payment of a capital sum in settlemt of all future claims to maintenance shall NOT be effective until it has been approved by the court!
Thus, it seems that Prenuptial Agreement is not "that effective" in the courts of law in Malaysia. But then again, even only as reference, a judge may be persuaded to grant maintenance in accordance with any Prenuptial Agreement signed between two parties who are divorcing at a end of a fairly short marriage.