Insights

How to sign a valid prenuptial agreement in Ningbo

Ningbo Author：LuXu WANG

A prenuptial agreement is not automatically valid simply by being signed. Some agreements stipulate that “if one party commits adultery, they shall forfeit all marital property,” while others restrict the other party from remarrying or having children. Such clauses may be deemed invalid on the grounds that they unduly restrict personal rights or contravene public order and good morals. The key to entering into a valid prenuptial agreement lies in staying within the bounds of the law. In conclusion: An effective prenuptial agreement should be in writing, limited to property-related provisions, and must not restrict personal rights, contravene public order and good morals, or result in manifest unfairness; where the agreement involves the gift of real estate, the donor may revoke the gift prior to the transfer of title, and it is advisable to promptly complete the transfer or have the agreement notarized.

1. legal basis: three main lines

The first main line-the property agreement is well-founded.Article 1065 of the the People's Republic of China Civil Code states: "A man and a woman may agree that the property acquired during the marriage and the pre-marital property shall be owned separately, jointly or partly separately or partly jointly. The agreement shall be in writing. Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties. The scope of what can be agreed upon is quite broad: it may include the ownership of premarital property, the allocation of marital income, property shares, investment returns, and the assumption of debts.

The second main line-personal rights can not be limited.Article 1042 of the Civil Code prohibits arranged marriage, buying and selling marriage and other acts that interfere with the freedom of marriage; Article 1053 and other provisions protect the freedom of marriage and personal freedom. Clauses that restrict a party’s freedom to divorce, remarry, or bear children through property-based penalties or conditional constraints are invalid on the grounds of violating public order and good morals.

The third main line-the effective elements of behavior and the revocation rules.Article 153 of the Civil Code stipulates that civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid, and civil legal acts that violate public order and good customs are invalid; Article 151 stipulates that if one party takes advantage of the other party's danger and lack of judgment ability, which makes the civil legal act obviously unfair when it is established, the injured party has the right to request cancellation; article 152 sets a period of exclusion for the right of revocation (manifest unfairness is one year, up to a maximum of five years, from the date on which the cause of revocation is known or should have been known).

There are two other rules for the interpretation of marriage and family (I) that must be known: Article 69, paragraph 1, stipulates that if the parties reach an agreement on the disposal of property and debts conditional on divorce by agreement or mediation in court, if the divorce is not completed and one party goes back on its word in divorce proceedings, the court determines that the agreement has not taken effect; Article 32 stipulates that, if it is agreed before marriage or during the existence of the marriage relationship that the real estate owned by one party will be donated to the other party or shared by the other party, if the donor cancels the gift before changing the registration, the other party requests to continue to perform, and the court may deal with it in accordance with Article 658 of the Civil Code (gift is arbitrarily revoked, except notarized gift)-only the promise of real estate that the agreement will not be transferred may be revoked at any time.

List of 2. Agreeable and Non-Agreeable Boundaries

May be agreed (property matters):

  1. Pre-marital property ownership: the real estate, deposits, equity, vehicles, etc. under their respective names belong to them;
  2. Property system after marriage: the income after marriage shall be owned by each, jointly or in common;
  3. Large property arrangements: property share, investment income, equity appreciation part of the attribution;
  4. Debt commitment: pre-marital debt, the scope of post-marital debt and settlement arrangements;
  5. Compensation arrangements: quantifiable monetary compensation such as compensation for domestic work and compensation for the contribution of children's upbringing (Article 1088 of the Civil Code recognizes the right to claim compensation for the party with more obligations, and the agreement may specify the standard in advance);
  6. Foreign-related factors: Clarify applicable laws and jurisdictional arrangements.

No agreement (personal and statutory matters):

  1. Restrictions on the freedom of divorce: "whoever files for divorce will leave the house clean", "divorce requires the consent of the other party", etc;
  2. Limiting remarriage, limiting births, agreeing to abortions or the number of births;
  3. Agreement on the ownership of child custody or waiver of visitation rights (custody rights are based on the best interests of the child at the time of divorce, and the agreement can only be used for reference and cannot be "bought out" in advance);
  4. Exemption from legal obligations such as the obligation to raise children and the obligation to support parents;
  5. Disposition of another person's property: the property in the name of the parent, child or third person is written into the agreement.

Regarding the "loyalty agreement" (such as "one party's derailment compensation to the other party 1 million yuan" or "clean body out of the house"): judicial practice has long been divided on its effectiveness. The prevailing judicial approach is as follows: loyalty clauses providing for monetary compensation are, in some courts, upheld or adjusted on a case-by-case basis, provided they do not violate mandatory legal provisions and the amount is reasonable. However, provisions such as “leaving with nothing” or “depriving one party of all property,” which are tied to the freedom of divorce and result in a manifest imbalance, are generally not upheld; at most, they may be considered as a factor in awarding a smaller share of the marital assets to the faulting party. A prudent approach to drafting loyalty clauses is to substitute them with quantifiable damages capped at a reasonable limit, while preserving evidence of fault, rather than relying solely on a “clean break” provision to resolve the matter.

Example of clause writing: "after marriage, their respective incomes shall be owned by them, their respective debts shall be paid off, and their daily expenses shall be shared according to the agreed proportion" and "jointly purchased real estate shall be registered as shared, with party a accounting for 60% and party B accounting for 40%". it is easier to land than to write generally "property shall be owned by them"; On the contrary, "Both parties voluntarily agree that in case of divorce, Party A will give up all the property shares", which is conditional on divorce, will not take effect when the divorce is not completed (explain the first paragraph of Article 69 of the (I)), which is a typical invalid design-writing "arrangement at divorce" as "current agreement" is the most common pit in drafting.

3. three effectiveness traps that are easily overlooked

Trap 1: The property agreement with divorce conditions does not take effect before the divorce.If "if divorce, how to divide the property" is written into the pre-marital or intra-marital agreement, it belongs to the processing agreement conditional on divorce-if the two parties do not actually agree to divorce and one party goes back on his word in the lawsuit, the agreement will not take effect (Article 69, paragraph 1, of the (I) of interpretation). If the agreement is intended to be binding during the marriage, the clause should be drafted as a “direct stipulation regarding property ownership” rather than a “provision for the disposition of property upon divorce.”

Trap two: real estate agreement is not equal to the transfer of property rights.The agreement that the premarital property "belongs to both parties" is only a creditor's promise. There are only two ways to resolve this: either transfer the ownership and add a name to the registration, or execute a notarized deed.

Trap three: limited constraints on creditors.If the husband and wife agree that the property shall be owned by each other and the debts shall be borne by each other, it shall be binding on the inside. Externally, only if the creditor knows the agreement can the personal property of the husband or wife be paid off (Articles 35 and 37 of the Interpretation (I)), and the burden of proof for "the creditor knows" lies with the husband and wife. To use a system of separate property to isolate debt risks, it is also necessary to ensure that the other party to the transaction is informed and that there is a record of this; relying solely on a written agreement is insufficient.

The legal consequences of choosing a separate property system or a partial co-ownership system are obvious: under a separate property system, one party's debt in his own name is, in principle, paid off by the individual, but the debt incurred for the daily needs of the family may still constitute a joint debt (article 1064, paragraph 1, of the Civil Code), which is not as absolute as "each person's own debt; part of the common system needs to write down the" common scope "-which accounts, which income to share, the order of debt settlement, to avoid future implementation and division of the word. For remarried families, the agreement should also deal specifically with the upbringing arrangements and property segregation of the children of the former marriage, the inheritance expectations of the respective children of both parties, the convergence of the property agreement with the former spouse, the setting of beneficiaries of large insurance policies-"clear boundaries" in the remarriage scenario is more protective of the parties than "let nature take its course.

4. Signing Process and Material List

  1. Each party shall list the pre-marital property and debts: real estate (warrant number, mortgage), deposit account, securities fund, equity contribution, vehicle, creditor's rights and debts;
  2. Agree on the post-marital property system, the decision-making mechanism for large expenditures, and the assumption of debts;
  3. Drafting of the agreement: check article by article whether the "personal restriction" red line is touched, and the marked transfer or notarization arrangement of the property is involved;
  4. Both parties shall independently sign and date, and each party shall hold one original;
  5. If the real estate gift is involved, the transfer registration or notarization shall be handled simultaneously; important agreements are recommended to be notarized as a whole;
  6. In the event of significant changes in the structure of income and property after marriage, a supplementary agreement or a marital property agreement is signed.

Voluntary evidence is equally important: keep communication records during the signing process to prevent one party from claiming to be "forced to sign" and "not knowing the content" in the future; For agreements with complex contents, it is recommended that both parties sign under the witness of a notary or professional, and the notary shall inquire and record the true intentions of both parties.

5. Common Misconceptions and Correct Answers

Myth 1: A prenuptial agreement must be notarized to be effective.Positive solution: the written agreement is signed by both parties to take effect, notarization is not an effective element, but notarization can enhance the force of proof, and the notarization involving the gift of real estate can exclude the giver's arbitrary right of revocation-important property arrangements are still recommended notarization.

Myth 2: Premarital property will automatically become common property after marriage.Positive solution: personal property is not transformed by the continuation of marriage (article 31 of the explanatory (I)); Only after marriage can the compensation or income generated by joint repayment of loans and joint investment enter the common scope-"half can be divided without agreement" is a wrong expectation, and division according to agreement is the basic logic.

Myth 3: The agreement can agree to restrict the other party's remarriage and childbirth.Positive solution: personal rights cannot be restricted by agreement. Such clauses violate public order and good customs and are invalid, and may intensify contradictions. What can be agreed upon is property and compensation, not personal freedom.

Myth 4: Sign once and for all.Positive solution: when the property structure changes after marriage (changing houses, starting a business, inheriting and giving birth), the original agreement may be out of date-it is more realistic to sign a supplementary agreement or a marital property agreement in time to keep the agreement in sync with the status quo than "one agreement for a lifetime.

Myth 5: A prenuptial agreement can only protect the wealthy party.Positive solution: the agreement can also agree on housework compensation, children's education fund, large expenditure joint signing and other provisions to protect the weak party-the "sense of security" written into the agreement, both sides are beneficiaries.

Myth 6: The agreement is effective when it says "who will take the children after divorce.Positive solution: the custody arrangement is based on the best interests of the children at the time of divorce, and the agreement to "buy out" or "lock in" custody in advance can only be used as a reference, not against the judgment made by the court according to the actual situation.

Misunderstanding 7: prenuptial agreement can only "guard" the other party, can not give each other benefits.Positive solution: the agreement can agree on the protection of the weak party-housework compensation, post-divorce transition period assistance, children's education fund, insurance beneficiary arrangement, two-way design can make both parties willing to sign, sign firmly.

6. Frequently Asked Questions

Can a prenup say "who cheers and who clears out?

High risk. This provision both enforces marital fidelity and restricts the freedom to divorce; in judicial practice, it is generally not upheld or is only considered on a case-by-case basis. Even if treated as a breach-of-contract claim for damages, such claims are typically required to be reasonable and quantifiable, making it virtually impossible to compel one party to forfeit all assets upon divorce. To curb unfaithful behavior, employing a capped damages clause and securing solid evidence is more effective than relying on a “leave with nothing” provision.

Must a prenuptial agreement be notarized to be valid?

No need. The written agreement shall become effective upon signature by both parties; notarization is not a prerequisite for its effectiveness. However, notarization significantly enhances its evidentiary force, and in cases involving the gift of real estate, it can preclude the donor’s right to revoke the gift at will—therefore, notarization is recommended for significant property arrangements.

Can the agreement agree not to have children after marriage?

Compulsory agreements involving reproductive autonomy are invalid. The right to procreate is a personal right and may not be subject to compulsory enforcement or penalized through property-related clauses; such agreements contravene public order and good morals and will not be upheld by the courts.

After signing a prenuptial agreement, what about the big changes in property after marriage?

Updated in time. The prenuptial agreement only covers the matters agreed upon at the time of signing the contract. New property after marriage, changes in income structure, birth of children, etc. may make the original agreement out of touch with reality-supplementary agreements or marital property agreements may be signed, which also require writing, legality and no personal restrictions.

The agreement agreed that "after marriage each earn each other's money, debt each pay each other", can isolate each other's debt?

Effective internally and limited externally. If the creditor is unaware of the agreement, they may still assert the debt as a joint obligation; only if it can be proven that the creditor knew of the agreement shall the debt be discharged using the debtor’s personal property. To mitigate risks, in borrowing scenarios, you should proactively disclose any property agreements to the other party and keep a record of such communication, while also avoiding commingling accounts.

7. Practical Insights from a Lawyer

Prenuptial agreements are not valid if they are signed, nor are they safer if they are written. In practice, agreements that are rendered invalid often fail for two main reasons: first, they overstep into matters of personal rights, such as stipulating that a party must forfeit all assets upon committing adultery or restricting the other party’s right to remarry or have children; second, their terms are grossly unfair, depriving one party of even their basic livelihood, which makes them susceptible to being declared invalid or subject to modification. Therefore, the boundary should be drawn before drafting: only property, fairness and clarity. Who signs and what is signed should both be negotiated voluntarily and with full mental clarity, rather than having one party draft the terms and force the other to sign on the spot.

The signing process saves steps: both parties participate in the negotiation in person, sign in person, indicate the date, and each keeps the original; For the property that needs to be registered, cooperate to complete the transfer or change; Notarization is done if conditions permit, especially if it involves large real estate gifts and it is not voluntary to worry about being questioned in the future. The assets specified in the agreement should be clearly delineated, with deposit accounts, real estate, equity interests, and creditor’s rights each having their respective ownership rules and provisions for handling any increases in value explicitly set forth. Under no circumstances should one party draft the document on its own and then rush the other to sign it—such an approach not only strains relations but also leaves open the possibility, in the future, of claiming that the agreement does not reflect the true intentions of both parties.

There are also several effectiveness traps that are easy to be ignored: when it comes to real estate donation, the donor may go back on his word before the transfer; The effectiveness of the agreement will also be affected if it is used to cover up the purpose of avoiding debts and taxes. After signing, the situation will be shelved and never revised after marriage. The actual protection will continue to decline. The best time to talk about an agreement is when the relationship between the two parties is still good and they can communicate rationally. The closer the wedding date is, the easier it is to be coerced by emotions. Think of it as a candid financial conversation, not a zero-sum game.

Effective prenuptial agreement = written form + property content + true voluntary + do not touch the personal red line. Clearly set forth all matters that can be agreed upon—such as the ownership of pre‑ and post‑marital property, liability for debts, and compensation arrangements—and expressly exclude those that cannot be agreed upon, including freedom to divorce, remarriage and childbearing, child custody, and statutory obligations. Where real estate is involved, choose either a transfer of title or notarization. Use clauses conditioned on divorce with caution to avoid having “written agreements” deemed unenforceable in litigation. For the vast majority of people who plan to marry or remarry, the meaning of a prenuptial agreement is not calculation, but to put both parties' expectations of property on the table-the clearer the talk, the fewer disputes after marriage and divorce.