Historically, pre-nuptial agreements were often viewed with scepticism as they were perceived to involve the waiver of legal and financial benefits for the less wealthy spouse. However, as divorce has become more prevalent and gender equality has advanced, courts have become more open to upholding pre-marital agreements. These agreements are now more commonly used by parties to protect their pre-marital assets and debts in the event of a divorce.
Essentially, pre-nuptial agreements are a legal document entered into prior to marriage, outlining the handling of assets, liabilities and other financial matters in the event of a divorce. In Hong Kong, there is currently no specific legislation governing pre-nuptial agreements. Nonetheless, the courts usually give full weight to these agreements when considering the financial claims during a divorce, provided that the agreement was entered into by parties freely with a full understanding of its implications.
For a prenuptial agreement to be legally enforceable, the court will typically consider the following factors:
- Parties have shown to have understood the terms of the agreement;
- Parties had independent legal advice;
- Parties gave full and frank disclosure of their financial positions;
- Parties were not under pressure when signing the agreement;
- Parties did not exploit a dominant position;
This list is not exhaustive but provides a general basic guideline.
Additionally, even if a pre-nuptial agreement was entered into fairly, the court may still choose not to uphold it. This can occur if the parties’ financial situations have undergone significant changes (for the better or worse) since the marriage, rendering the initial agreement unfair or no longer reflective of the parties’ living standard during the marriage.