7. Do nuptial agreements have any legal status?
Nuptial agreements, other than separation agreements, are not as a general rule considered binding in the usual contractual sense in law in Hong Kong. There is no specific legislation concerning nuptial agreements, and not many court cases have addressed the topic of nuptial agreements.
However, such agreements (not being separation agreements) could be taken into account when deciding the outcome in divorce proceedings in Hong Kong courts involving ancillary relief and division of financial assets under the Matrimonial Proceedings and Property Ordinance as “circumstances of the case” or “conduct”, and may be upheld in part or in whole.
When the court needs to determine whether or not to make an order in accordance with a nuptial agreement, the question of fairness is a key issue. As ruled in an English case, nuptial agreement should be given effect (that is, enforced) if it was “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.” This principle was followed in Hong Kong.
On the other hand, according to the Matrimonial Property and Proceedings Ordinance, separation agreements (agreements entered between couples once they have separated or on the occasion of their separation) are valid contracts.
To understand more about this, please visit Matrimonial Matters > Marriage and co-habitant issues > Nuptial agreements.