Insights

How to sign a valid prenuptial agreement in Ningbo

Ningbo Author：LuXu WANG

The prenuptial agreement is not a calculation to "hurt feelings", but to clearly write down the property boundary between two people to avoid repeated wrangling over "yours and mine" in the future. The crux of the problem is not "whether to sign or not", but "how to sign is valid and how to sign is counted".

1. prenuptial agreement, whatever.

Property and debt are the core, and personal freedom cannot be contracted.

Prenuptial agreements mainly deal with property matters such as the ownership of property before marriage, the system of property acquired after marriage, the assumption of debts, and the disposition of specific property. According to Article 1065 of the Civil Code, both men and women may agree on the ownership of pre-marital property and property acquired during the existence of the marriage relationship. However, the agreement cannot dispose of personal rights-for example, it is agreed that "whoever asks for divorce will leave the house clean", "must have a son" and "restrict visiting children". Such clauses that restrict the freedom of divorce or personal rights are often not recognized because they violate public order and good customs.

2. formal elements: written and true meaning

written form is the basis for fighting internal disputes

marital (including pre-marital) property agreements should be in writing, which is a clear requirement of Article 1065 of the Civil Code. There is only an oral agreement, and once the other party denies it at the time of divorce, it is difficult for the claiming party to prove it. Written agreements also need to be based on the true meaning of both parties: those concluded by fraud or coercion may be revoked, and may be adjusted in the light of human danger or apparent unfairness. Therefore, communication records should be kept when signing the contract, and recording or witnesses can be synchronized when necessary.

3. what content is easy to be found invalid

the provisions of personal rights and legal obligations should be avoided.

The following types of provisions are at high risk: divorce as a condition for entry into force or expiration, punitive "clean out of the house" imposed on one party. Courts usually respect property arrangements, but negatively evaluate those that restrict personal freedom and evade legal obligations. The agreement should be written on "how to divide property", not "how to manage people".

Whether 4. notarization is required

non-mandatory, but can significantly enhance the force of proof

the law does not require a prenuptial agreement to be notarized and signed in writing to be binding. However, notarization can effectively fix the signing time, the identity and true meaning of the parties, and reduce disputes such as "I did not sign it" and "forced at that time" in the future. If real estate, equity or large assets are involved, notarization is recommended; if foreign assets or parties are involved, notarization is more conducive to cross-border recognition.

5. case proof

according to the sorting of disputes over the validity of similar prenuptial agreements in Zhejiang, prenuptial agreements in written form, limited to property and debt arrangements, and true meaning are adopted, and the proportion of divorce division is relatively high. If the agreement is to restrict the freedom of divorce or punitive "clean-up" as the content, the relevant provisions are mostly deemed invalid or not applicable. Ningbo area of the "property agreement is valid, personal terms invalid" division of the treatment, and the province is consistent.

6. Risk Alert

  • verbally said that "each person is in charge of his own money", the other party of the divorce did not recognize it, and the agreement fell through.
  • It is written into "whoever mentions divorce will leave the house clean", and the restriction on the freedom of divorce is deemed invalid.
  • The agreement is general and does not specify the scope of the property, and the mixed part may still be considered common.
  • When signing the contract, he was coerced by recording but there was no counter-evidence, so it was difficult to withdraw.
  • Involving property equity but not notarized, future authenticity disputes consume the cost of proof.

7. FAQ

do prenuptial agreements have to be notarized to be valid?

I don't have. The Civil Code only requires written form, notarization is not an entry-into-force requirement, but notarization can fix the true meaning, enhance the probative force, involving large assets recommended notarization.

Is the agreement "who mentions divorce and who leaves the house clean" valid?

Such punitive clauses, which are conditional on restricting the freedom of divorce, are usually found to be invalid or inapplicable for violating public order and good customs or restricting personal rights.

Can a prenuptial agreement agree to bear the debt after marriage?

Internal effects can be agreed upon, but only with the knowledge of the creditor against the external debt.

Does an agreement written before marriage take effect after marriage?

A property agreement concluded before marriage, conditional on marriage, is usually binding on both parties after the registration of the marriage.

Practical Experience of 8. Lawyers

let's first distinguish between what the prenuptial agreement does and what it does. It mainly deals with the ownership of pre-marital property, what kind of property system is used for post-marital income, how to bear debts, and the disposition of specific property. Only when the boundary is clear can the written clauses be binding and not written in vain. If you draw this boundary clearly before you start writing, you can avoid many clauses that seem to have made money but are actually invalid.

Formal elements often determine the validity of the agreement: it must be in writing, the parties are genuine and voluntary, signed in person, preferably before the marriage is registered. The content should fall on specific property, such as which suite, which account, which company's equity and how to calculate the value added after marriage, and then agree on the way to change and terminate. Notarization is not a necessary condition for the agreement to take effect, but it will be safer to fix the signing process and enhance the probative force. If the property structure is complex, it will be safer to do one.

In practice, before signing, make a list of property and sort out the source, and clearly write down the loan situation, parents' contribution and common relationship, so as not to match the terms and real ownership. Each party keeps an original copy and records the time and process of signing. When talking, replace "prevent the other party" with "explain the rules clearly", and the other party will accept it much more smoothly. Another point is often overlooked: if there are major changes in the property structure after signing, such as pre-marital house replacement, new company, large assets in and out, it is necessary to supplement or re-sign in time, otherwise the original terms are likely to be out of touch with reality.