Prenuptial Agreements
Written by jayshaw   

Prenuptial agreements are based on the simple principles of contract law and are valid in a wide range of jurisdictions if drafted correctly. Therefore a prenuptial agreement drafted in China will be enforceable in the UK, US or even Australia. Due to the simplistic nature of this agreement and the growing number of international marriages the occurrence of prenuptial agreements has substantially increased.

What is it?

A prenuptial agreement is an agreement between two people who are contemplating marriage which stipulates the rights and obligations of each party in relation to property. In addition prenuptial agreements can also specify any spousal maintenance which is to be paid and the amount or percentage of such. A prenuptial agreement has the same effect as a civil contract and is binding in force despite which jurisdiction it is lodged in.

Why should I have one?

There are many reasons why those contemplating marriage should consider a prenuptial agreement. The most popular reason is to protect the wealth of both parties but this is not the sole reason. If you fall into the following categories then a prenuptial agreement should be considered:

•  International marriage of different cultures.
•  Own all or part of a business.
•  You may be receiving an inheritance.
•  You may have children/grandchildren from a previous marriage.
•  One party is much wealthier than the other.
•  One party is supporting the other through university/college.
•  You have family who needs to be taken care of such as elderly parents.
•  You have or are pursuing a degree or license in a potentially lucrative profession (e.g. medicine or law).
•  You could see a big increase in income in the future.
•  There is a wide range of situations where prenuptial agreements are warranted, consequently, they are becoming much more common in today's society.

Enforceability?

A prenuptial agreement drafted in the Peoples Republic of China can be lodged in any jurisdiction and is governed by the simple principles of Contract Law. This universal enforceability is subject to varying procedural and substantive requirements of each jurisdiction which must be adhered to ensure a legally binding contract results. It is therefore recommended that parties consult a lawyer to draft a prenuptial agreement.

There are however various general requirements which must be satisfied in order for a prenuptial agreement to be binding in force. Firstly the agreement must be in writing and signed voluntarily by both parties. If a party is coerced or signed the agreement under duress then the agreement will be considered invalid. To avoid the appearance of coercion or duress the courts have held that an agreement should be signed at least 1-2 months before the wedding. Secondly the content of a prenuptial agreement must be clear and concise with all property accurately expressed so that there is no doubt in either parties mind of who owns what. Thirdly it is essential that each party receive independent legal advice regarding the terms of the agreement and whether they are equitable and just. This advice can be given by the same lawyer if agreed to by the parties or waived if and additional clause is inserted into the agreement. Lastly it is important that each party give a full and frank disclosure of all their property and assets.

In addition to these general requirements there are specific procedural requirements which may result depending on which jurisdiction the agreement is lodged. For example some jurisdictions require two witnesses of each party’s signature or that the witness be a notary public or qualified lawyer. It is therefore important to consult a lawyer in the drafting of a prenuptial agreement.

It is also beneficial if a prenuptial agreement contains a severability clause. A severability clause allows the agreement as a whole to remain in force if any particular clause is deemed to be void. This means that the void clause will simply be severed from the agreement, while all other clauses will still apply.

contact us

Here at Jay and Shaw we are experienced in the specific requirements of each jurisdiction and can draft a prenuptial agreement to meet your needs. Please contact our office at 8610-5129-6373, or please send us an email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

 


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