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What issues can be agreed upon in Ningbo prenuptial agreement

Ningbo Author：LuXu WANG

An increasing number of couples are choosing to sign prenuptial agreements before getting married, clearly outlining issues such as property ownership, debt liability, and household expenses. However, prenuptial agreements cannot be drafted arbitrarily; some provisions are valid, while others may be modified by the court or deemed invalid. First, give a conclusion: prenuptial agreement can mainly stipulate the ownership, management, income and disposition of property before and after marriage, as well as property matters such as family living expenses and debt bearing. Provisions involving restrictions on personal rights or obvious unfairness may be deemed invalid or adjusted. The agreement shall take effect when signed by both parties. Written form is the prerequisite for entry into force. Notarization is not an effective requirement but can significantly enhance the proof force.

1. Legal Basis and Foundation of Validity

The core basis of the prenuptial agreement is Article 1065 of the the People's Republic of China Civil Code: Both men and women can agree that the property acquired during the existence of the marriage relationship and the premarital property shall be owned by themselves, jointly or partially owned by themselves or partially jointly owned by themselves; the agreement shall be in written form; the agreement between the husband and wife on the property acquired during the existence of the marriage relationship and the premarital property shall be legally binding on both parties.

To understand this rule, we need to grasp three levels: first, the agreed object can be pre-marital property, post-marital income, or a specific kind of property; second, "the agreement should be in written form", oral agreement is difficult to prove and can not produce binding force; third, "legally binding on both parties", which means that both parties should abide by it, in the event of divorce, the court disposes of property as agreed, unless the agreement itself is flawed in its effectiveness. The boundaries of the

protocol stem from two restrictive provisions. First, Article 153 of the Civil Code provides: A civil legal act that violates a mandatory provision of a law or administrative regulation is void; a civil legal act that contravenes public order and good morals is also void. Second, articles 146, 150 and 151 of the Civil Code: the act of false intention is invalid. Agreements involving personal freedom and personal dignity are often invalid because they violate public order and good customs, such as "restricting the freedom of divorce", "remarriage means loss of custody", "restricting childbirth" and other clauses.

In addition, Article 1042 of the Civil Code prohibits asking for property through marriage, and Article 1043 advocates mutual loyalty between husband and wife-these principled provisions affect the validity of "loyalty agreement" and "return of bride price", which are discussed below.

2. What can be agreed upon: five types of valid matters

  1. Property Ownership: Pre-marital property shall be owned by each party respectively; post-marital income, in whole or in part, may be owned by each party respectively, jointly owned, or specific assets (such as a particular house or a certain type of investment) may be designated to belong to one or both parties—these constitute the core provisions of the agreement.
  2. Management, income, and disposition of property: specify who will manage the post-marital wages, how investment income will be distributed, and that the disposition of significant assets requires the consent of both parties. The attribution of proceeds relates to the general rule of Article 1062 of the Civil Code on the common property of production, operation and investment after marriage, which may be excluded or changed by written agreement.
  3. Sharing of Household Living Expenses and Children’s Education Costs: How to share the daily expenses, education expenses, medical expenses and large expenses, and make an agreement item by item can avoid unclear "housework account.
  4. Assumption of Debt: Specifies the nature of debts incurred by either party before or after marriage, as well as the party responsible for such debts. It should be noted that such an agreement is valid between husband and wife, but it cannot be rivaled by unwitting creditors, who should also take the initiative to inform the creditors and retain evidence of the notification.
  5. Compensation for Household Duties and Support Arrangements: The method for calculating divorce compensation when one party undertakes a greater share of family responsibilities, or the plan for financial assistance upon divorce, falls within the scope of parties’ autonomy of will. Clearly specifying these arrangements in writing provides greater certainty than attempting to assert them retroactively.

What 3. can't agree on: the validity boundary and the high-risk clause

The validity of the following types of agreements is doubtful or invalid, which should be avoided actively when signing the contract:

  1. Determination of Child Custody: Custody is determined based on the best interests of the child at the time of divorce. Pre-nuptial agreements that pre-emptively specify “which parent will have custody” generally are not binding, and the court will still make a comprehensive determination by considering factors such as the parents’ ability to provide care and the child’s wishes.
  2. Restrict the freedom of divorce: it is agreed that "divorce must be clean and leave the house", "whoever proposes divorce will give up his property" and so on, which may be regarded as invalid due to restriction of the freedom of divorce, violation of public order and good customs, or only for discretionary reference.
  3. "Loyalty Agreement" clause: The validity of the agreement that "whoever is derailed will leave the house" is controversial in judicial practice, and some courts do not support it or only refer to it as appropriate; even if it is valid, it is extremely difficult to prove derailment itself.
  4. Limiting personal and personality rights: Limiting remarriage, limiting birth, depriving visitation rights and other provisions are usually invalid because they violate public order and good customs.
  5. Unconscionability Clause: If a contract provides that one party waives all property rights, resulting in a severe imbalance of rights and obligations, the court may deem it unconscionable and adjust the terms; contracts entered into under fraud or duress may be rescinded (subject to a one-year limitation period).

Deduce a scene to make it easy to understand (example, fiction): A prenuptial agreement stipulates that "if one party cheats after marriage, he will leave the house clean and give up all the common property when divorcing". During the divorce, Party A presented evidence of Party B’s infidelity and requested to receive nothing under the terms of their agreement. The courts differed on the validity of the "clean out" clause-some found it valid and divided it accordingly, some found it to be a loyalty agreement, only as appropriate in favor of the no-fault party at the time of division, and some directly found it invalid. The uncertainty of the conclusion shows that writing too stringent personal punitive provisions into the agreement does not buy "certainty".

4. Actionable steps: Make the agreement concrete.

  1. Inventory and clarify each party’s premarital property and debts, prepare a property inventory listing the location and property certificate number of real estate, as well as vehicles, bank deposits, equity interests, receivables, and other assets;
  2. Clearly define the purpose of the agreement: to protect premarital property, specify the post-marital property regime, and clarify the allocation of debts, among other matters;
  3. Draft the terms of the agreement, avoiding language that restricts personal rights or is manifestly unfair;
  4. Have significant property agreements notarized or witnessed by a lawyer to enhance their evidentiary force; where real estate is involved, simultaneous application for pre-registration or transfer registration can be made to ensure the agreement is effectively implemented.
  5. Both parties shall carefully read, understand, and voluntarily sign this document, date it, and each shall retain the original copy.
  6. In the event of a significant change in the marital property situation, the parties shall negotiate and enter into a supplementary agreement or an intra-marital property agreement.
  7. In the event of a dispute over the validity of a divorce agreement, either party may request the court to confirm its validity and have the matter resolved in accordance with the agreed terms.

5. Common misconceptions

Misunderstanding 1: A prenuptial agreement can stipulate who the children belong to when they divorce. positive solution: the custody of children is based on the principle of the best interests of the children at the time of divorce, and the relevant agreements in the prenuptial agreement are generally not binding.

Misunderstanding 2: It is agreed that "whoever derails will leave the house clean" must be effective. Positive solution: The validity of this kind of loyalty agreement is controversial in judicial practice, and some courts do not support it or only refer to it as appropriate, which cannot be used as a definite "insurance".

Misconception 3: A prenuptial agreement must be notarized to be valid.Correct answer: The written agreement becomes effective upon signature by both parties; notarization is not a prerequisite for its effectiveness, but it can strengthen the evidentiary force. For transactions involving significant assets, notarization is still recommended.

Myth 4: Once a prenuptial agreement is signed, it can never be changed. Positive Solution: Both parties can change or revoke the prenuptial agreement through negotiation, and can also make a new agreement through the marital property agreement.

Myth 5: The more ruthless the agreement is written, the more secure it is.Correct answer: Clauses that are overly stringent, unduly restrict personal rights, or are manifestly unfair may be deemed invalid or subject to modification; only properly drafted provisions have enforceability.

6. Remedies and notarial practices after a contract is revoked or declared invalid

A prenuptial agreement is not a one-time, permanent solution; it is equally important to understand the remedies available when its validity is called into question:

  1. Time limit for the exercise of the right of revocation: for the agreement concluded due to fraud, coercion or obvious unfairness, the right of revocation shall be exercised within the legal time limit-the party concerned shall propose it within one year from the date when he knows or should know the cause of revocation (within 90 days in case of major misunderstanding); if the right of revocation is not exercised within five years from the date when the civil juristic act occurs, the right of revocation shall be eliminated. The period of limitation for exercising the right of rescission is neither suspended nor interrupted; once it expires, the opportunity to rescind is lost, and the only remaining option is to modify the agreement through negotiation.
  2. The Value and Limits of Notarization: Notarization is not a prerequisite for the validity of an agreement, but it can serve to attest to the genuine intent at the time of signing, prevent subsequent claims of “duress,” and fix the date of execution; for agreements involving significant assets, notarization is recommended. Even after notarization, both parties may still enter into a separate written agreement to amend the original terms without requiring re‑notarization; however, any amendment documents must also be documented in writing.
  3. The Risk of Revoking a Gift in Real Estate Agreements: The prenuptial agreement stipulates that the premarital property of one party belongs to the other party or both parties, which belongs to the nature of the gift of the property between husband and wife. Before the registration of the change, the donor can exercise the right of arbitrary revocation according to Article 658 of the Civil Code (Article 32 of the (I) for the Interpretation of Marriage and Family has special provisions for this)-after the agreement, the agreement can be made, this point and this article "involving real estate registration as soon as possible," the proposal of mutual confirmation.
  4. Partial invalidity does not affect the whole: If a particular invalid clause does not impair the validity of the remaining clauses, those remaining clauses shall remain effective; the entire agreement need not be invalidated merely because of a “leave with nothing” clause.

A common related question is: “Does the content of a prenuptial agreement need to be updated regularly?” The answer is: it is recommended to review it periodically. When the property status changes significantly (house purchase, entrepreneurship, inheritance, one party's debts, etc.), the original agreement may be out of touch with the actual situation, and both parties may negotiate and sign a supplementary agreement or a new marital property agreement; Involving changes in the ownership of the agreed property, the registration or change procedures shall be handled simultaneously to avoid the two skins of "the agreement is new and the registration is old.

A common question associated with it is: "Is it valid that the agreement states that the property is owned by one party but has not been transferred?" the explanation for this is: if the agreement itself is valid, but it belongs to the nature of the gift of real estate between husband and wife, the donor may cancel it in accordance with article 658 of the civil code (article 32 of the (I) on the interpretation of marriage and family)-only after the agreement is completed as soon as possible can the paper agreement be changed into the ownership of real rights.

A common problem associated with it is: "If the agreement is signed but not notarized, and the other party said he was forced to divorce at that time, how to deal with it?" the explanation for this is: the key to proving that the signing is voluntary is to leave traces in the process: the chat records of full communication between the two parties before signing, the traces of multiple rounds of amendments to the agreement, the presence of witnesses or lawyers at the time of signing, and the fact that the agreement has been fulfilled for a long time after signing, all of which can refute the claim of "being forced"; The most powerful thing is notarization-notarization-notarization has a legal obligation to examine the signing process and voluntartarty. Conversely, if the agreement was indeed signed under duress and in haste, the right to rescind should be exercised promptly within the statutory period; the longer one waits, the more difficult it becomes to assert such a claim.

A common related question is: “Does a prenuptial agreement need to include both parties’ debts?” The answer is: it is recommended to do so. Clearly specifying the parties responsible for premarital debts, as well as the nature and repayment arrangements for any debts incurred during the marriage, can help avoid disputes arising from one party’s debts being claimed by creditors. Where notification to creditors is required, evidence of such notification should be retained in accordance with Article 1065, paragraph 3, of the Civil Code to ensure the enforceability of property agreements against third parties.

A common problem associated with it is: "Is it necessary to keep accounts one by one when it is agreed that" the income after marriage belongs to each person "?" The explanation is: the agreement itself is valid, but "the income belongs to each person" is difficult to implement under the mixed account-if the salary, operating income and common expenses share the same account, it is difficult to distinguish which are "respective income" when divorcing ". It is recommended to establish separate, independent accounts for each party, obtain written confirmation for large‑value receipts and payments, and, where necessary, specify in the agreement the rules for handling commingled funds, so as to avoid a disconnect between the contractual terms and the actual circumstances.

7. Frequently Asked Questions

Can a prenuptial agreement stipulate the amount of the betrothal gift?

Sure. The provisions of the Supreme Law on several issues concerning the application of law in the trial of disputes involving betrothal gifts (implemented on February 1, 2024) make it clear that small gifts on holiday birthdays and daily consumption expenses do not belong to betrothal gifts, and parents can be the common plaintiff and defendant of marriage property disputes. If a prenuptial agreement or marriage contract involves a bride price, the nature, scope and return conditions of the bride price may be clarified by reference to the provisions, so as to reduce disputes afterwards.

If a prenuptial agreement has been signed, can it still be amended during the marriage?

Yes. Upon mutual agreement, the parties may enter into a separate marital property agreement to amend the existing provisions, which shall likewise be in writing; the amended agreement shall supersede the original agreement, and care should be taken to retain evidence of the parties’ voluntary execution thereof.

Does a prenuptial agreement need to be signed by the other party’s family?

No. A prenuptial agreement is a contract between the two parties, which becomes effective upon their signatures; if it involves contributions from or benefits for the parents, the parents may separately provide written documentation to support the agreement, but this shall not affect the validity of the agreement itself.

How is property not addressed in the agreement divided upon divorce?

deal with it according to legal rules: the property before marriage belongs to each of them, and the income after marriage is divided equally for the common property in principle. Matters outside the scope of the agreement shall not change the statutory rules as a result of signing the agreement, and the terms shall be as comprehensive as possible.

Can the property ownership agreed in the prenuptial agreement be against creditors?

Article 1,065, paragraph 3, of the Civil Code provides: If a couple agrees during the subsistence of their marriage that property acquired during the marriage shall belong to each of them individually, and a third party is aware of such an agreement, any debt incurred by one spouse shall be discharged with the individual property of that spouse.In other words, only when it can be proved that the creditor "knew the agreement" can the personal property of a party be used to pay off its personal debt-informing the creditor and retaining the evidence of the notification is a key step in making the property agreement effective externally.

Practical experience of 8. lawyers

The prenuptial agreement is most likely to be misunderstood as hurting feelings. In fact, it is to spread out the property disputes that are likely to break out after marriage. You can first agree on the ownership, management, income, disposition of property before and after marriage, as well as the sharing of family living expenses, debt bearing these property matters. What is really to be avoided are those provisions that touch on personal rights, such as restrictions on the freedom of divorce, restrictions on childbearing or career choices, and the abandonment of all property by one party, which are often found to be invalid or adjusted.

If you want the agreement to have the final say, the key is to write the part of realizable and easy to increase in value: the location and ownership of the real estate, the source of equity and how to deal with the increase in value after marriage, the liability for debt, and the standard and payment method for living expenses. In particular, the property that may be acquired in the future and the proceeds that continue to be generated, the more detailed the agreement, the better, don't just write a sentence after marriage each property to each other. It can be signed as soon as possible before registration. The sooner it is, the less likely it is to be questioned. It is better to keep the signing process and communication traces when signing.

Even if the agreement is signed, the other party may claim that it is obviously unfair or be forced to cancel it. At this time, you should be able to prove that the agreement is voluntary, clear and free from danger. It is more convincing than simply emphasizing black and white to sort out the background of the signing, the degree of knowledge of both parties and the actual performance. The agreement is not permanent, the lifestyle and property form will change, and if necessary, the supplementary agreement will be updated synchronously to match the agreement with the status quo, so that the original terms will not be found to have failed when it is really necessary to divide.

The value of a prenuptial agreement lies in stating clearly in advance the "things about money that cannot be said": property ownership, debt bearing and expense sharing fall into a written form, less wrangling after marriage and less consumption during divorce. But it is not a universal set of clauses-agreements involving personal rights may be invalid, agreements that are obviously unfair may be adjusted, and the validity of loyalty agreements remains controversial. The correct posture for signing an agreement is: list the property first, write down five types of items that can be agreed upon in detail, actively avoid five types of high-risk clauses, supplement major property with notarization and registration, and sign a supplementary agreement in time for changes after marriage.