Prenuptial Agreements in Hong Kong: Key Principles and Legal Considerations
- Stefan Schmierer
- May 2, 2020
- 4 min read
Updated: Mar 12
Author: Stefan Schmierer, Managing Partner
Understanding Prenuptial Agreements in Hong Kong
A prenuptial agreement is a signed and written contract entered into by parties to a prospective marriage. The agreement sets out how their assets and liabilities are to be divided if the marriage is later dissolved.
The terms in the agreement will usually cover the divisions of capital and earnings. The agreement may also specify the financial and custodial arrangements for children of the marriage or the religious beliefs they are to be taught. However, the jurisdiction of the court over children can never be ousted.
The benefits of a prenuptial agreement are not solely for the protection of the assets of a wealthy spouse. The advantage of a prenuptial agreement is that both parties enter the marriage with clearly defined and honest expectations.
Enforceability of Prenuptial Agreements in Hong Kong
Whilst English authorities are persuasive they are not binding on the Courts in Hong Kong. It is likely that Hong Kong Courts will give substantial consideration to recent developments in the law relating to prenuptial agreements in England.
The English courts were traditionally reserved on prenuptial agreements. Although over the years the English courts have accepted prenuptial agreements as a factor for consideration when determining the division of matrimonial assets, the relative weight to be attached to such agreements was unclear.
However, following the English Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, the position seems to have significantly changed. Although not binding, the persuasive effect will be felt by the Courts in Hong Kong.
In Granatino, the Supreme Court, by a majority of eight to one, ruled that it was not unfair to hold the parties to the prenuptial agreement signed almost 10 years earlier. The overriding criteria to be established in ancillary relief proceedings was that of fairness, and a reasonable prenuptial agreement became a key factor.
A prenuptial agreement made in the appropriate manner will now be given far greater weight unless in the circumstances it is unfair to do so.
What Makes a Reasonable Prenuptial Agreement?
Although what is reasonable will depend on the individual circumstances, Granatino has given general guidelines as to what constitutes a reasonable prenuptial agreement capable of determining fairness. A prenuptial agreement is generally reasonable if it is procedurally fair and substantively fair.
Procedural fairness refers to matters such as consent, free will, full disclosure, and obtaining independent legal advice. The agreement must not be signed under pressure, duress or undue influence and should be signed within a reasonable time before the marriage.
There should be an interval between the agreement and the marriage so neither party feels pressured at the last minute.
Substantive fairness relates to matters such as:
provision for the children of the family.
provision for the spouse.
provision for unforeseen circumstances.
provision for complete disclosure of all assets.
Jurisdiction of Hong Kong Courts Over Prenuptial Agreements
The courts in Hong Kong have jurisdiction in divorce proceedings (where a prenuptial agreement will be a factor to be considered) if either party satisfies the three main criteria in Section 3 of the Matrimonial Causes Ordinance (Cap 179).
These criteria are:
one of the parties was domiciled in Hong Kong at the date of the petition for divorce; OR
one of the parties was habitually resident in Hong Kong throughout a three-year period immediately before filing; OR
one of the parties has a substantial connection with Hong Kong at the date of filing.
A petition for divorce generally cannot be accepted until one year after the date of marriage.
It does not matter where the marriage took place, provided the marriage is valid. Likewise, it does not matter where the prenuptial agreement was signed, provided its validity is not in doubt.
Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.
Contact Ravenscroft & Schmierer
Contact us if you are considering drafting or reviewing Prenuptial Agreements in Hong Kong, our family law team can assist with:
ensuring procedural fairness.
independent legal advice.
asset disclosure requirements.
cross‑border considerations.
drafting enforceable and balanced agreements.
FAQ: Prenuptial Agreements in Hong Kong
What is a prenuptial agreement?
A signed and written contract entered into before marriage that sets out the division of assets and liabilities if the marriage dissolves.
Are prenuptial agreements enforceable in Hong Kong?
Yes, courts can give them significant weight, especially after the persuasive effect of the Radmacher v Granatino decision, provided they are fair.
What makes a prenuptial agreement reasonable?
Procedural fairness (free will, disclosure, independent advice) and substantive fairness (provisions for spouse, children, and unforeseen events).
Does Hong Kong recognise prenups signed overseas?
Generally, yes, as long as the validity of the agreement is not in doubt.
What criteria determine if Hong Kong has jurisdiction over a divorce involving a prenup?
Domicile in Hong Kong, habitual residence for three years, or substantial connection to Hong Kong.
Can a prenup dictate arrangements for children?
It may include such provisions, but the court's jurisdiction over children cannot be ousted.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
For specific advice about your situation, please contact:
Managing Partner
+852 2388 3899
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