Pre-Nuptial Agreements in Hong Kong

Pre-Nuptial Agreements are not absolutely binding on the Hong Kong Court. Traditionally, these agreements will be taken into consideration in Ancillary Relief proceedings as one of the factors to be considered by the Hong Kong Court.

However, the 2014 case of SPH v SA in Hong Kong has confirmed that the Hong Kong Courts will follow the English case of Radmacher v Granatino and thereby give full meaning and effect to a Pre-Nuptial Agreement, provided that the Agreement were entered into by the Parties under their own free will, without undue influence and they had all the information that was material to decisions made when executing it. Furthermore, the Agreement must be considered fair in the prevailing circumstances when the Agreement is being considered by the Court.

This situation does of course have practical implications on expatriates who were married in other jurisdictions and signed Pre-Nuptial Agreements in another jurisdiction and now wish to divorce in Hong Kong.

One factor to take into consideration is that the foreign element of the Pre-Nuptial Agreement could enhance the weight of the Agreement in Hong Kong. That is to say that if the Pre-Nuptial Agreement would be binding in the other jurisdiction, the Parties may be taken to be intended to be bound by it for the purpose of the Hong Kong proceedings.

A problem that many expatriates involved in divorce proceedings in Hong Kong encounter is that if there is an international dynamic case, with domicile in another jurisdiction or assets in various places this results in more than one Court potentially having jurisdiction to deal with the breakdown of their marriage. Forum-shopping for the best jurisdiction may then prevail, with a Party seeking a more favourable jurisdiction for their case.

Again because of the international dynamic, it is always good for the Parties to instruct their Hong Kong lawyers to consult with lawyers in other relevant jurisdictions when entering into a Pre-Nuptial Agreement in Hong Kong.  It may also be sensible to enter into a mirror Post-Nuptial Agreement in the other jurisdiction, which will ensure that the Agreement is drafted in accordance with the laws of more than one jurisdiction, that may become relevant if the marriage breaks down. Therefore, a Pre-Nuptial Agreement that states the jurisdiction of choice or law to be applied may help determine the jurisdiction for the Parties.