Insights

Is it necessary to make a prenuptial property agreement in Ningbo?

Ningbo Author：LuXu WANG

Xiao Chen is planning to get married and owns a property and some savings. She worries that their assets might become unclear after marriage, but she also hesitates to bring up a prenuptial agreement for fear of hurting their feelings. This is a common concern among many soon-to-be-married couples. To put it bluntly: a prenuptial agreement (legally referred to as a marital property agreement) is not a declaration of distrust meant to “guard against” the other party; rather, it is a financial document that clearly sets out the rules governing property. Article 1,065 of the Civil Code explicitly provides that both parties may, in writing, agree on the ownership of premarital property and property acquired during marriage, and such an agreement is legally binding on both parties. For individuals with complex financial situations, who have remarried, have children, run a business, or hold substantial real estate and equity interests, signing a prenuptial agreement is often more reassuring than not doing so. The agreement itself does not affect the relationship; what matters is the way partners communicate—framing “clearly defined arrangements” as “transparent rules” is something most rational couples can accept.

1. Legal Basis and Validity Boundary

Article 1065 of the Civil Code stipulates that both men and women may agree that the property acquired during the marriage relationship and the pre-marital property shall be owned by each other, jointly owned or partly owned by each other or partly jointly owned; the agreement shall be in written form; the agreement between husband and wife on the property acquired during the marriage relationship and the pre-marital property shall be legally binding on both parties; the agreement between husband and wife on the property acquired during the marriage relationship shall be owned by each other, if the debt incurred by the husband or wife to the outside world is known to the relative, the personal property of the husband or wife shall be paid off.

This clarifies the three boundaries of effectiveness:

  1. Formal requirements: must be written, oral agreement, WeChat casual mention is not legally binding;
  2. Internal effect: the agreement is binding between husband and wife, and the divorce is divided according to the agreement;
  3. Limited external effect: When a third party (creditor) is involved, the agreement is owned by the respective creditor and must prove that the creditor knows the agreement, otherwise it cannot fight the good faith creditor-if you want to segregate the debt, you must also let the counterparty to the transaction know in writing.

At the same time, the content of the agreement shall not violate the mandatory provisions of the law and public order and good customs: the agreement on "restriction of freedom of divorce" (such as the divorce restriction clause of "who files for divorce and who cleans out of the house") and "waiver of personal rights" shall be invalid; Agreements signed under unfair and fraudulent coercion may be requested to be revoked. An agreement may only address property matters and cannot “bundle” in personal matters such as child custody.

2. who needs a prenuptial agreement more?

Not everyone needs it, but the following seven categories are recommended for serious consideration:

  1. Remarried families: both parties have their own pre-marital property and pre-marital children, which are not clearly agreed upon, and the division of inheritance and divorce behind them will lead to conflicts in the pre-marital family;
  2. The disparity in property: one party has a house, equity and deposits, and the other party has limited property. It is agreed to avoid the suspicion of "combining money with money" and to protect the rights and interests of the parents of the investor;
  3. Pre-marital existing real estate or mortgage: clear the ownership of the house and the appreciation of the loan repayment, to avoid the complex dispute of calculating the compensation account according to Article 78 of the explanatory (I) in the event of divorce;
  4. Operating enterprises, holding equity: the ownership of the company's equity directly affects the governance structure, the agreement of the equity to one party of the individual, to prevent the marriage caused by the turmoil of the shareholder level;
  5. Parents give or leave large amounts of property to their children: In conjunction with gift agreements and wills, it is stated that the property "belongs only to the children";
  6. One party has high debt or is engaged in a high-risk industry.: segregating the impact of personal debt on family property through agreement + creditor knowledge;
  7. Transnational marriage, foreign-related property: the nationality and habitual residence of the two parties are different, the property rules may involve the application of foreign-related laws, and written agreement can reduce the uncertainty of conflict of laws.

What is written in the 3. agreement and how to write it.

A full prenuptial property agreement usually contains four pieces:

  1. Annex to the property list: itemize their pre-marital property (real estate, vehicles, deposits, equity, intellectual property, insurance, creditor's rights and debts), with clear time nodes;
  2. Post-marital property system: whether the post-marital income belongs to each, jointly owned, or part of each part of the common-can be agreed as a whole, or only for specific property (such as the rent of a property, a company's dividends) separate agreement;
  3. Debt commitment: the rules of settlement of marital debt (internal effectiveness), note that external creditors still need to know before they can fight;
  4. Special arrangements: compensation for household chores, sharing of alimony for the elderly, etc. may be included, but there is no mandatory agreement on matters involving persons and children.

Drafted and signed action list:

  1. Both parties truthfully disclose the property and jointly make a list, and concealing the property may defeat the objectives of the agreement;
  2. Signed in writing, preferably both parties keep the original and indicate the date of signing;
  3. Involving real estate, equity, can be notarized at the same time, enhance the proof and facilitate the follow-up registration;
  4. Involving changes in real estate property rights, timely transfer registration or name addition, light agreement does not register, property rights do not change;
  5. In the event of a significant change in the property status after marriage (entrepreneurship, inheritance, purchase of a house), a supplementary marital agreement shall be signed to update the agreement.

4. Misunderstandings and Positive Solutions

  1. Myth 1: Signing a prenuptial agreement means not trusting each other.The correct solution: the agreement protects both parties, especially the savings of the investor's parents for a lifetime; positioning the agreement as a "family financial charter" reduces the secret battle of "who is in charge of the money" after marriage.
  2. Myth 2: Just say it orally. Correct answer: Article 1,065 requires a written form; oral agreements have no legal effect, and it is almost impossible to provide proof afterward.
  3. Myth 3: The agreement can agree on anything.Positive solution: restrictions on the freedom of divorce, agreement to give up custody of children, personal injury compensation and other provisions are invalid.
  4. Myth 4: Sign the agreement once and for all.Positive solution: the original agreement may be out of date after the change of income structure and debt status after marriage, and should be regularly reviewed and updated.

The convergence of 5. prenuptial agreements and marital agreements and wills.

Property arrangement is a systematic project, and the prenuptial agreement is only the first piece of the puzzle, which must be connected with the other two types of documents:

  1. Connection with marital agreement: the prenuptial agreement stipulates the rule of "marriage time point". after major changes such as starting a business, inheriting and buying a house after marriage, the prenuptial agreement may not be extended any longer-the property system shall be updated through supplementary marital agreement, with the same effect; if the prenuptial agreement stipulates that "the income after marriage belongs to each other", special attention should be paid to the influence of the agreement on common debt: when one party is external debt, only if the creditor is aware of the agreement, it will be paid off with the debtor's personal property, so if you want the agreement to fight the debt, you must let the counterparty to the transaction know in writing (Article 1065, paragraph 3, of the Civil Code);
  2. Cohesion with gift and will: when parents contribute to purchase a house or donate equity, the premarital/marital agreement shall simultaneously state that "the gift shall be owned by the children" and be consistent with the content of the gift contract of the parents to prevent the two documents from having different calibres; Involving the inheritance behind, the expression of "only the children" in the will should be echoed with the marital agreement to avoid the inheritance link returning to the track of common property;
  3. Convergence with corporate governance: If it is agreed that the company's equity shall be owned by one party, the articles of association or shareholder agreement shall be amended simultaneously to avoid conflicts between the registration of the register of shareholders and the property agreement-the change of equity registration also involves the issue of knowledge and preferential purchase of other shareholders of the company (limited liability company), and the company shall check with the corporate governance documents before signing the contract.

The common failure case in practice is "three pieces of paper fight": the prenuptial agreement says that the house belongs to the woman, the parents' transfer remarks say that the purchase price, registration and registration are registered in the man's name, and finally the court can only restore the treatment according to the registration and contribution, and the agreement part fails. Consistency between documents is as important as the effectiveness of the documents themselves.

The Boundary Case of Invalid and Revocable 6. Agreement

The boundaries of the validity of the marital property agreement are illustrated by three types of typical clauses:

  1. The clause restricting the freedom of divorce is invalid: it is agreed that "whoever proposes divorce will give up all the property", "divorce must be approved by the other party" and other clauses conditional on restricting divorce violate the principle of freedom of marriage, and this part is invalid; However, the simple property ownership agreement ("a certain property belongs to the woman") is not affected by who initiated the divorce-distinguish between "restricting divorce" and "disposing of property", is a watershed in terms of design;
  2. Obvious unfairness and fraudulent coercion may be revoked: if one party conceals a major debt or a major illness before marriage, and the other party signs an agreement without knowing it, it may claim fraud and request revocation; if the other party signs an obvious imbalance clause by taking advantage of the other party's distress or lack of judgment, it may claim obvious unfair revocation. In practice, courts will make a determination by comprehensively considering the circumstances surrounding the signing, the extent of the disparity in assets, and the negotiation process between the parties; accordingly, the likelihood of a notarized agreement being revoked is significantly reduced.
  3. Limitations on the interests of children and third parties: if the agreement is to waive the right to custody of the child and waive the maintenance fee in exchange for property concessions, the maintenance part is invalid because it involves the legal rights and interests of the child (the right to claim maintenance belongs to the child in essence); if the agreement harms the interests of the creditor, the creditor may request revocation according to law. Property terms can be freely agreed upon, but cannot be "packaged" to dispose of the interests of children and the legitimate rights and interests of others.

Model clause writing (example): instead of writing expressions such as "if the man derails, he will leave the house clean", which are attached to fault identification and may be identified as restricting divorce, it is better to write "both parties confirm that the real estate located in xx (real estate certificate number xx) is the woman's personal property, and the man voluntarily gives up any claim of rights and interests in the real estate"-direct disposition of the property without binding the divorce conditions, which is more stable effect. Translating "desired purpose" into "directly effective property terms" is a core technique in drafting agreements.

The Right Posture for 7. to Talk about Agreement: From Resistance to Acceptance

The biggest obstacle to a prenuptial agreement is not the law but communication. The key to negotiation lies in "positioning" and "timing":

  1. Repositioning agreement: instead of calling it "prenuptial agreement", it is called "family property planning book" and "new family financial regulations", which emphasizes the protection of the future funded by both parents and jointly planned, rather than "guarding against whom"-once the positioning changes, the sense of resistance is greatly reduced;
  2. Take the initiative to show the sincerity clause: the agreement is not a list of unilateral care and birth, and it is easiest to break the deadlock by adding arrangements that are beneficial to the other party (the proportion of income sharing after marriage, the sharing of family expenses, and the other party's housing security), so that the other party can see that "you are also protecting me;
  3. Choosing timing: when discussing the specific property arrangements such as wedding room, bride price and wedding budget, it is naturally introduced, which is better than abrupt formal conversation. When the wedding date is approaching, it is easy to trigger the association of "temporary change of mind", so it must be advanced;
  4. Joint drafting: the two sides each list the property issues of concern, and then draft them after merging into a list, which is more equal than one party writing well for the other party to sign. When necessary, ask a third party to sort out the intermediary to avoid face-to-face bargaining confrontation;
  5. Leave room for amendment: the agreement states that "matters not covered in this agreement may be supplemented by both parties in writing" and can be updated with family changes after marriage-so that the signing is no longer a "one-shot deal" and reduces the concerns of both parties.

The last true sentence: whether talking about prenuptial agreement hurts or not depends on whether there is a basis of trust in the relationship before talking. A marriage without trust will not go far without signing an agreement. A marriage with trust will be more practical if it signs an agreement-the agreement only writes down the rules that both of them agree.

8. Frequently Asked Questions

Can I sign a property agreement after marriage?

Yes. Article 1065 is also applicable to the duration of the marriage relationship. The effect of the marital agreement ("marital property agreement") is the same as that of the prenuptial agreement. Many families sign up at the nodes of house purchase, entrepreneurship and inheritance, with the same effect.

Do prenuptial agreements have to be notarized?

It is not necessary in law, and the signature of both parties will take effect. However, notarization can prove that both parties are true and voluntary when signing, and the content is legal. The probability of being claimed to be fraudulent and coerced in the future is greatly reduced, and those involving real estate change registration are also easy to be accepted by the registration authority.

After signing the agreement, does the court have to divide it according to the agreement when divorcing?

It is generally dealt with by agreement, but there are three types of exceptions: some of the provisions of the agreement are invalid (restriction of personal freedom, etc.); there is fraud, coercion, manifest unfairness and is revoked in accordance with the law; and the agreement to the detriment of the creditor is revoked by the creditor's request (article 538 of the Civil Code, article 3 of the Interpretation (II)).

The agreement stipulates that "each property shall belong to each other in the event of divorce". Does the court approve it?

Recognition, which is a typical separate property system agreement. However, two points should be noted: First, any such agreement only addresses matters between the spouses; with respect to external debts, it can only be enforced against third parties if the creditor is notified. Second, if one party experiences financial hardship upon divorce, they may still invoke Article 1090 of the Civil Code to claim economic assistance, as a property agreement cannot absolve the statutory obligation to provide such assistance in times of need.

Can one party conceal a huge debt before marriage, can the agreement be exempted?

The agreement itself does not, of course, exempt the other party from external liability: the personal debt before marriage is in principle borne by the debtor, but if the debt is used to live together after marriage, the creditor may still claim to be treated as a joint debt of the husband and wife. The agreement may set out a list of their respective premarital debts and declare that they do not know each other as a basis for internal recovery, but the external effect shall be subject to the provisions of the law.

9. Practical Insights from a Lawyer

Do you want to sign a prenuptial agreement, do not look at the depth of feelings, look at the property structure. My recommendation is to first prepare a list of the parties’ assets: what each party owned before the marriage (real estate, equity interests, business entities, substantial bank deposits, especially any large financial contributions from their parents), and what is expected to be acquired during the marriage. The more complex the list and the more diverse the sources, the higher the value of the signature, especially for remarriage or remarriage with children. If both parties have only wages and a small amount of savings, the income from signing is also limited, so it is more practical to focus on daily financial transparency. First judge "whether it is worth signing" and then talk about "how to sign".

If you decide to sign it, you will focus on three things: how to calculate the pre-marital property and its post-marital income, such as the rent of the pre-marital property after marriage, the sale of the new house after replacement, and the appreciation of the equity after marriage. The attribution should be stated separately. What kind of property ownership method is used for the income after marriage; Who bears the debt. In drafting, be specific—refer to “a particular apartment, a specific account, or a certain company”—and avoid vague, impractical generalizations like “each party shall retain its own.” Otherwise, in the event of a dispute, it will be as if no agreement was made at all. It is agreed that the agreement shall be in writing, with each party retaining one copy, and, if necessary, the signing process shall be notarized for evidentiary purposes.

The way of communication often determines whether this is a success. Don’t frame it as “being on guard against you”; present it instead as a clear arrangement that outlines your household financial rules—most rational partners will be able to accept it. At the same time, be sure to design it separately from the marital agreement and the will, so that these documents do not conflict with one another. One more reminder: not all provisions can be included. Clauses that restrict personal freedom, dispose of another party’s property, or are intended to evade debt are likely to be deemed invalid. It is far more effective to screen out these high-risk clauses before signing than to dispute them afterward.

The essence of the prenuptial property agreement is to change "in case" into "in advance": to clarify the ownership of the property in advance, so that there is no need to argue about the distribution of money when the relationship is at its lowest point after marriage. Whether to sign or not depends on the family's asset structure and risk exposure-it is not a big deal for ordinary working families not to sign, but if it involves real estate mortgage, corporate equity, remarried families and large contributions from their parents, a written agreement can save years of litigation in the future. In terms of negotiation strategy, it is recommended to first communicate "why" (protecting parents' contributions, isolating debts, maintaining corporate governance) before discussing the terms.

At the end of the day, let's talk about a question that is often asked rhetorical: Is it "all good" after signing the agreement? No-the agreement solves the internal property rules of husband and wife, but does not solve the problem of real right registration: the agreement stipulates that the real right is still registered in the name of the original right holder, and the other party's unauthorized disposition may lead to the problem of bona fide acquisition; the agreement can not control of the adjacent links such as corporate governance and testamentary inheritance. Therefore, the mature property arrangement is the trinity of "agreement + registration + supporting documents": agreement to set rules, registration to set property rights, will to set the back. Only when all three fall to the ground can we really clarify the property.

The last point is added: the agreement and relevant documents (marriage certificate, property right certificate and stock right certificate) are suggested to be filed and kept in a unified way, and the agreement involving real estate and stock right should be filed or changed in the registration authority simultaneously-the document management is in place, so the agreement is not easy to fail.