Hong Kong Marriage (including prenuptial) Property Agreements: Q&A
What is a matrimonial (or prenuptial) property agreement and what does it usually contain?
A matrimonial (or prenuptial) property agreement is an agreement made between the parties to a marriage, either before or after the marriage, which sets out the system and arrangements for the vesting of the property of the parties during the marriage and the distribution of their property in the event of a divorce in the future. If the agreement is signed before the marriage, it is called a prenuptial property agreement. If the agreement is signed after the marriage, it is called a matrimonial or postnuptial property agreement.
Is a matrimonial (prenuptial) property agreement made in Hong Kong legally valid?
According to the Hong Kong Court of Final Appeal in SPH v SA [2014] HKEC 957 (FACV No. 22 of 2013), Hong Kong has followed the legal position in the UK Radmacher case and the Hong Kong courts may recognise the validity of a properly made matrimonial (prenuptial) property agreement.
Is a matrimonial (prenuptial) property agreement made in Hong Kong absolutely valid?
Under the Hong Kong legal system, the court has absolute discretion to distribute assets in divorce proceedings in accordance with the principle of equity. Therefore, even if a marital (prenuptial) property agreement is properly made, its validity is not absolute and is still subject to the court’s discretionary power to distribute assets. Nonetheless, case law establishes that a court should recognise the legal effect of a properly made matrimonial (prenuptial) property agreement in the absence of factors that would render it invalid and should consider the matrimonial (prenuptial) property agreement as an important factor in exercising its discretion. See the introduction to Hong Kong prenuptial property agreements and their validity.
Is there a difference in effect between a postnuptial property agreement and a prenuptial property agreement in Hong Kong?
The legal principles for determining the validity of a prenuptial property agreement and a postnuptial property agreement (including a separation agreement) in Hong Kong are the same. If you do not have time to make a prenuptial agreement before marriage, you can also make a postnuptial agreement after marriage.
How should a Hong Kong matrimonial property agreement be properly made?
Important factors for a properly made matrimonial property agreement include: (1) the parties must seek independent legal advice, i.e. the parties should be represented by different Hong Kong law firms during the drafting and making process; (2) the parties need to make full and honest financial disclosure to each other; (3) there are no other factors that would render the contract invalid, such as duress, fraud, misrepresentation, etc.; (4) the agreement is free from all forms of fraud, coercion, fraud and misrepresentation; and (5) the agreement is not a marriage agreement, but a marriage agreement. (4) the terms of the agreement should be reasonable, e.g. the needs and interests of the children should be taken into account, as well as the reasonable living needs of the weaker party and compensation for his/her contribution to the family.
Can a prenuptial property agreement be entered into close to the intended date of marriage?
Both parties should be given sufficient time to consider and should not be pressurised into entering into an agreement. Under case law, a matrimonial property agreement entered into only 21 days before the wedding date is considered too short a period of time for the weaker party to be pressurised into entering into a matrimonial property agreement nearer the date of the wedding, resulting in the matrimonial property agreement being held to be invalid.
Can a matrimonial property agreement provide for the application of laws outside Hong Kong (e.g. Mainland laws)?
If the parties have a close connection with a place outside Hong Kong, they may also consider stipulating in the agreement that the law of a place other than Hong Kong will apply. paragraph 37 of the judgment in SPH v SA [2014] HKEC 957 (FACV No. 22 of 2013): the parties’ choice of the law of another place (e.g. the choice in that case of the law of Germany) reflects a strong intention on the part of both parties to give legal effect to the agreement. The parties’ choice to use the law of another place (e.g. German law in this case) reflects the strong intention of the parties to give the agreement the force of law, but this is irrelevant in this day and age, as it is not usually disputed that the parties intended the agreement to be legally binding at the time of signing it.
What is the procedure for engaging your firm to assist in entering into a matrimonial (or prenuptial) property agreement?
(1) Make an appointment to meet with our firm. Our lawyers listen to the client’s instructions and ideas about entering into a matrimonial (or prenuptial) property agreement and advise the client on the legal effect of the matrimonial property agreement, the procedures for entering into the agreement, etc.; (2) Our firm prepares a draft of the matrimonial (or prenuptial) property agreement in accordance with the client’s instructions and sends it to the client for comment and approval; (3) After the client has no further comments, our firm sends the draft of the matrimonial (or prenuptial) property agreement to the lawyers representing the other party to the agreement. (3) After the client has no further comments, the Firm sends a draft of the matrimonial (or prenuptial) property agreement to the solicitors representing the other party to the agreement for comment; (4) After neither party to the agreement has any further comments, our firm will witness the signatures of the client on one side of the agreement, and the solicitors representing the other party to the agreement witness the signatures of the other party. Upon completion of the signing, each party to the agreement will execute an original copy of the agreement.
My fiancé is currently unrepresented. Can you recommend a law firm to represent him/her?
We can provide a number of law firms that handle this type of obligation for him/her to contact on his/her own. In order to ensure that each party to the agreement receives independent legal advice, we will only provide the name and public contact details of the firm to be contacted and will not be involved in the process of retaining the firm.
What are the solicitors’ fees for engaging your firm to assist in entering into a matrimonial (or prenuptial) property agreement?
We can charge a fixed fee for entering into a matrimonial (or prenuptial) property agreement in Hong Kong, please contact our law firm for details. Email: [email protected], Tel: +852 31881995, WeChat/WhatsApp: +85251039249.