How to write Ningbo prenuptial property agreement to be valid? Invalid clause and writing method

The raising of 1. issues

last week we received a couple of young people who were going to get married and they were going to sign a prenuptial property agreement.

The man has a property purchased before marriage, and the woman has a certain deposit. Both parties want to clarify the ownership of the property before marriage to avoid future disputes.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

The legal basis for the 2. of the prenuptial property agreement.

Article 1065 of the Civil Code provides that a man and a woman may agree that property acquired during the marriage and pre-marital property shall be owned separately, jointly or partly separately or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 10

62and 1063 of this Law shall apply.

The key points here are: the prenuptial property agreement must be in writing and the oral agreement is invalid.

What can be agreed 3. a prenuptial property agreement?

The core content of the prenuptial property agreement is the attribution of property, which can be agreed to include:

1. Ownership of premarital property

clarify who owns the property, vehicles, deposits, stocks, debts, etc. owned by both parties before marriage. This is the most basic content of the prenuptial agreement.

2. Ownership of property after marriage

it may be agreed whether the income after marriage shall be owned separately, jointly, or partly owned separately, partly jointly. For example:

• after marriage, their respective salaries and bonuses shall be owned by them;
• for the real estate purchased after marriage, the share shall be determined according to the proportion of capital contribution;
• the property inherited or donated by one party after marriage shall be owned by that party personally.

3. The assumption of debt

you can agree on who will bear the debt before and after marriage. For example: one party has a mortgage before marriage, agreed to be borne by the party personally.

4. Property appreciation and attribution of income

you can agree on who owns the value-added portion of the pre-marital property after marriage (e. g. property appreciation, stock income). If not agreed, according to the law, the natural appreciation and fruits of pre-marital property still belong to the individual, but the operating income may belong to the common property.

4. these terms may be invalid

invalid Clause 1: Clauses restricting personal rights

for example, "one party may not file for divorce", "no remarriage within three years after divorce" and so on. Such provisions violate the right to freedom of marriage and are null and void.

Invalid clause 2: Disposition of property conditional on divorce

for example, "if one party files for divorce, the property belongs to the other party", "derailment will leave the house" and so on. Such clauses are usually identified as "divorce agreements" or "loyalty agreements" rather than prenuptial property agreements. In judicial practice, the validity of loyalty agreement is controversial, and many courts do not support it.

Practical Tip: If you want to agree on the consequences of derailment, it can be expressed as "if one party has a major fault such as cohabitation with others, in the divorce property division should be less or no", this expression is more likely to be supported by the court than "clean out of the house.

Invalid Clause 3: Provisions in violation of mandatory provisions of the law

for example, it is agreed not to raise children, not to assume maintenance obligations, etc. The maintenance of children and parents is a statutory obligation and cannot be waived by agreement.

Invalid Clause 4: Unfair Clauses

if the content of the agreement is obviously biased towards one party and seriously damages the legitimate rights and interests of the other party, it may be deemed to be obviously unfair, and the other party may request cancellation.

5. how to write effective

point 1: Clear property list

do not write in general "each pre-marital property belongs to each other", it is best to specify the specific property items, value, ownership certificate. For example:

• real estate: located at No. ×× Road, Yinzhou District, Ningbo City, with the real estate certificate No. ××, registered in the man's name, is the man's personal property before marriage;
• deposit: the man's deposit in the x x bank account x x x yuan, for the man's personal property before marriage.

Point 2: Agreement on the post-marital property regime

clarify which property system to adopt after marriage: separate property system, common property system, or part of the separate, part of the common. If a separate property system is chosen, the sharing of daily family living costs should be taken into account.

Point 3: Agreed Debt Undertaking

clarify who bears the pre-marital debt and how the post-marital debt is determined (joint or personal debt). According to article 1064 of the Civil Code, the joint debt of the husband and wife requires the joint signature or subsequent ratification of both parties, or for the family to live together. The rules for the determination of debt could be further clarified in the agreement.

Point 4: Keep space for changes and additions

you can agree on the way to change the agreement, such as "this agreement can be changed in writing by consensus of both parties". At the same time, it can be agreed that if the laws and regulations change, the relevant contents of the agreement shall be implemented according to the new provisions.

Point 5: Sign and Date

the agreement needs to be signed by both parties and dated. If there are conditions, it can be notarized. Notarization is not a prerequisite for a prenuptial agreement to take effect, but the agreement after notarization is more powerful.

Do 6. need to be notarized?

A prenuptial property agreement does not require notarization to be valid, but notarization has the following benefits:

• notary will review the content of the agreement to help identify invalid terms;
• the notarized agreement can be used directly as evidence without further proof of authenticity;
• if it involves real estate and other property that needs to be transferred, the notarized agreement is more convenient.

If the agreement involves a large amount of property or the situation is complex, it is recommended to notarize.

When is the best time to sign 7.?

The prenuptial property agreement shall be signed before the marriage registration. If it is signed after marriage, the nature becomes a "marital property agreement". Although it also has legal effect, there may be differences in the application of the law and the determination of its effectiveness.

It is recommended to sign an agreement after the decision to marry and before the marriage registration. Sign to ensure that both parties voluntarily, there is no fraud, coercion and other circumstances.

8. practical recommendations

for the party with more assets:

• A detailed list of pre-marital property and a certificate of retention of ownership;
• assignment of property after marriage, avoid mixing;
• consider setting up family trusts and other ways to segregate assets.

For the party with fewer assets:

• do not sign an agreement that is obviously unfair. If you are forced to sign it, you can claim to withdraw it;
• may require an agreement on the proportion of the distribution of joint property after marriage;
• pay attention to the agreement on the division of property in the event of divorce and ensure your basic rights and interests.

For both parties:

• the content of the agreement should be fair and reasonable, not one-sided;
• it is recommended that each delegate a lawyer to review the agreement to avoid missing important content;
• each shall retain one original after signing.

The above is about the validity of the prenuptial property agreement and writing suggestions. Premarital property agreement is an important tool to protect personal property rights and interests, but the content must be legal, fair and clear in order to really play a protective role.

Summary of 9. relevant laws and regulations

the main legal provisions covered in this paper include:

• article 1065 of the Civil Code
• article 1064 of the Civil Code

10. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Eleven, lawyers actual combat experience

whether the agreement is effective or not depends on three things: whether the two parties are true and voluntary, whether they have adopted written form, whether the content is illegal or harms the interests of third parties. In writing, we should think clearly about "what to write"-who owns the pre-marital property and its post-marital income, what kind of property ownership method is used for the post-marital income, who bears the debts, and how to dispose of specific real estate and equity. Each item should fall on specific property. We should not use the general expression of "each belongs to its own" and "non-interference with each other", otherwise we will not write it when we really use it.

There are several types of provisions that are high-risk areas and should be avoided before writing: restricting one party's freedom to file for divorce, agreeing to waive the obligation to raise children, disposing of property that actually belongs to others, and content for the purpose of avoiding debts, which are likely to negate the entire agreement or part of it. In addition, when agreeing on the ownership of property, it is best to state the method of change and termination, and which one shall prevail in case of conflict between this agreement and the marital agreement and will, so as to avoid fighting with each other in several documents, and no one can say afterwards.

The process and timing of signing are equally important. Try to complete the marriage registration before, both parties keep the original, the signing process had better leave a record, a notarization can enhance the proof, but it is not a necessary condition for entry into force. When talking, the acceptance will be much higher with the statement of "making the family financial rules clear" instead of the caliber of "preventing you. One more thing to remind: if one party has more assets or involves family business or parents' contributions, make a list of property and clarify the source before signing, otherwise the written terms may not match the real ownership.