Separation, Prenuptial and post-nuptial agreements
What is nuptial agreement generally?
Prenuptial agreement refers to agreement entered into by a couple before marriage while post-nuptial agreement refers to agreement entered into during the marriage, both of which purports to govern the rights and obligations of the parties should the marriage be dissolved.
Why prenuptial and post-nuptial agreements?
Prenuptial and post-nuptial agreements are desirable if one of the parties has children from a previous marriage, or wants to protect a particular asset, or even is in great debt. There may be a great disparity of wealth between the parties. The wife might want to protect herself before giving up a successful career for the stake of the marriage. Prenuptial or post-nuptial agreements may protect the parties’ financial and custody arrangements.
Are prenuptial and post-nuptial agreements effective?
Traditionally, they are not recognized by the court for policy reasons. However, case law has developed to recognize both categories since Granatino v Radmacher  UKSC 42. This was a case of a marriage between a French investment banker and a very wealthy German national. In that case, the parties came to a prenuptial agreement agreeing that each party forego any interest or benefit from the other’s property acquired before or during the marriage. The court held in favour of the wife to give effect to the agreement as long as it was freely entered into with all the information available to both parties in the absence of pressure unless it would be unfair to do so.
The Hong Kong courts generally uphold prenuptial and post-nuptial agreements when parties were legally competent in signing the agreement. This can be illustrated in L v C  HKFLR 334. This is a 30-year-marriage of a couple running nightclub business and property investment business. Considerable wealth was accumulated since the husband establishing a beauty-parlour and the wife working there when they first met. The parties have two post-nuptial agreements upon separation. In this case, the court gives effect to the agreements because they are not unfair under the circumstances and the court gives effect to the intention of the parties in a freely negotiated bargain.
Therefore, as long as the agreement is fair the court is likely to give effect to it in the case of separation. If you plan to make such an agreement, you and your partner are advised to seek legal opinions before signing one to ensure its effectiveness.