A common question among those planning to marry is whether a prenuptial agreement is a necessary prior to marriage. This is dependent on your circumstances but before we delve into whether it is necessary and enforceable in Hong Kong, it is important to know what exactly a prenuptial agreement is.
A prenuptial agreement is a contract between you and your fiancé as you both contemplate marriage. In a prenuptial agreement, you and your fiancé outline terms that you both agree in relation to issues such as the division of assets and debts upon a divorce. These agreements may also deal with maintenance for your spouse upon divorce as well.
It is important to note that prenuptial agreements generally do not cover issues related to child custody and child support/maintenance.
Generally speaking, if you are young with minimal assets and this is your first marriage, a prenuptial agreement may not be needed. If your fiancé has substantial assets that he/she would like to protect in the unlikely event of a divorce, then a prenuptial agreement may be a good idea, giving you and your future spouse peace of mind.
The question then is whether prenuptial agreements are enforceable in Hong Kong. Hong Kong generally follows UK law and in the UK, there was a case called Radmacher v. Granatino in 2011 whereby the UK Supreme Court declared that the Court should give effect to these types of agreements on the basis that it is freely entered into by each party with an understanding and appreciation of its implications unless of course it would be unfair to do so in the circumstances. Following this important decision in the UK, the Hong Kong Court of Final Apeal in a 2014 case called SPH v SA stated that the principles in Radmacher should be regarded as the law in Hong Kong.
With that being said, it is important to note that in Hong Kong, this is still a developing area of law and there is no set decision as to whether a prenuptial agreement will be held enforceable in a divorce in its strictest sense. Unlike jurisdictions like California where the Court will take into consideration the terms of a prenuptial agreement, Hong Kong law is still very new and it effectively depends on the circumstances of each individual case.
It is therefore exceptionally vital for you to consult with a professional matrimonial lawyer who is well-versed in such a subject. Be sure to provide as much detail to your solicitor so that he/she can provide you with his/her best advice with respect to whether a prenuptial agreement would be your best option in your circumstances because of the importance of having a well-drafted and detailed agreement to protect you in the event of divorce.