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Legal Effectiveness of Postnuptial Agreements in Hong Kong and Mainland China

Writer's picture: mcalaimcalai


A postnuptial agreement is an agreement signed by both parties after marriage, intended to regulate the distribution of assets and the custody of children in the event of divorce. According to the principles established by the Hong Kong Court of Final Appeal in LKW v. DD, the starting point for the division of matrimonial assets after divorce is a 50:50 split. However, this rule may disadvantage the financially stronger party. As a result, an increasing number of middle-class couples are choosing to sign postnuptial agreements to protect their personal assets.


Under Hong Kong law, although prenuptial or postnuptial agreements do not have absolute legal binding force, the court, when dealing with ancillary relief and property division matters under Section 7(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192), will take into consideration the principles set out in Radmacher. In other words, if both parties fully understood the meaning of the agreement at the time of signing and did so voluntarily, and if enforcing the agreement would not result in unfairness, the court will generally adopt the terms of the agreement when issuing appropriate orders.


In Mainland China, according to Article 1065 of the Civil Code, "The husband and wife may agree in writing that the property acquired during the duration of the marriage, as well as premarital property, shall be separately owned, jointly owned, or partly separately owned and partly jointly owned." "An agreement between the spouses regarding the property acquired during the marriage and premarital property shall be legally binding on both parties." Generally speaking, a prenuptial or postnuptial agreement that is voluntarily signed by both parties in writing, with clear terms, and free from fraud, coercion, concealment, or any other violations of public order and good customs, is legally valid and enforceable.


October 2024

Dr. Anthony Lai, Mr. David Lam, Mr. Howard Luk and Mr. Jeremy Xia

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