What is a prenuptial agreement? Is the division of pre-marital property valid in divorce?

Former US President Donald Trump is a typical representative of the prenuptial agreement with three marriages and two divorces. ‘A prenuptial is a horrible document, because it says, ‘When we get divorced, this is the way we’ll split things up.’ And when you’re a believer in positive thinking, it isn’t good. But it’s a modern-day necessity.’, he said. Prenuptial agreement is a binding agreement on legal responsibilities between the parties when signing, agreed before marriage to clearly define issues related to the spouses’ property regime.

In Vietnam, the Law on Marriage and Family 2014 does not have a specific concept of a prenuptial agreement, but in Article 47 of this Law, it has recognized the spouses’ property agreement regime: ‘In case a married couple that selects the agreed property regime, this agreement shall be made in writing before their marriage and be notarized or certified. The agreed matrimonial property regime shall be established on the date of marriage registration’. Compared with the Law on Marriage and Family 2000, the Law on Marriage and Family 2014 allows the parties to agree on the property before marriage. This is an open and progressive rule that allows couples to come to an agreement before getting married. When making this prenuptial agreement, the parties will minimize disputes about the use of the common property and separate property for each purpose. This agreement is not only advantageous in making it easier to determine property in the marriage but also after the divorce, making the divorce process easier. The court will base on the agreement to determine what is common property and what is separate property to divide, ensuring it is not against the law.

However, couples need to keep in mind the following points so that their prenuptial agreement can be recognized by law:

1. Forms of a prenuptial agreement

The prenuptial agreement must be made before the marriage, in writing, and shall be notarized or legally authenticated at a competent agency or organization (Notary Offices, People’s Committees, etc.).

2. Contents of a prenuptial agreement

It is compulsory that the prenuptial agreement contains all the basic terms as prescribed in Article 48 of the Law on Marriage and Family 2014 and Article 15 of Decree 126/2014/ND-CP dated December 31, 2014 detailing a number of Articles and Measures to implement the Law on Marriage and Family including property identified as common property, separate property of spouses; rights and obligations of spouses with respect to common property, separate property, and related transactions; property to meet the family’s essential needs; conditions, procedures, and principles of property division upon termination of the property regime; other relevant contents.

3. Principles of application

When applying the property regime under the agreement, the parties will have to rely on the terms stipulated in the agreement to resolve issues related to the property. However, when implementing to divide the property under the agreement that have not been agreed upon by the spouses or the agreement is unclear, the provisions of the law on marriage and family and the corresponding regulations of the statutory property regime will apply (Article 48.2 of the Law on Marriage and Family 2014). Accordingly, Article 6.1 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP dated January 6, 2016 guiding the implementation of a number of provisions of the Law on Marriage and Family also stipulates as follows:

• The agreement on the property regime of spouses may be declared invalid by the Court in whole or in part.

• In case the agreement on the property regime of spouses is declared completely invalid by the Court, the statutory property regime of the spouses shall apply.

• In case the agreement on the spouses’ property regime is declared partially invalid, the contents that are not invalidated shall still apply; for the invalid content, the corresponding provisions on the statutory property regime of spouses shall apply.

4. Amendment of a prenuptial agreement

The agreement on marital property regime is made before marriage and takes effect from the time of marriage registration; however, stemming from the needs of married life, the law allows spouses to amend and supplement the contents of the agreement on the spouses’ property regime to suit the will and aspirations of the parties. However, couples should note that the amendment of agreement must be in writing and notarized or authenticated. The notarization and certification of the document amending and supplementing the pre-marital agreement must be carried out at the place where the spouses have notarized the pre-marriage agreement on the property regime as prescribed in Article 51.2 of the Law on Notarization 2014. LTT & Lawyers hope that the above article brings useful legal information related to prenuptial agreement for couples who intend to agree on the property regime before getting married and limiting their marriage, minimizing disputes arising related to property during the marriage or divorce, even after the divorce.