In the Hong Kong case of SPH v SA, the court ruled that, in general, the family courts in Hong Kong should honour any Pre-nuptial Agreement (“PNA”) freely entered into by both parties unless there are circumstances that would render enforcement of the PNA to be unfair to one of the parties. This decision was based on an English case called Radmacher v Granatino.
Even though the protection of PNAs in Hong Kong has been strengthened, it is not possible to completely exclude the jurisdiction of the family courts in Hong Kong, leaving PNAs open to challenge. Thus, in the event of a permanent breakdown of marriage governed by a PNA, one should immediately seek legal advice.
When a PNA is challenged, the Hong Kong courts would examine six factors in the development of the PNA to ensure it is fair:
- Financial Disclosure – whether the parties fully and frankly disclosed their assets and liabilities.
- Independent Legal Advice – whether the parties received independent legal advice from each other.
- Full Understanding of the Consequences – whether the parties fully understood the consequences of entering into the PNA with their intended spouse.
- Duress or Undue Influence – whether one of the parties was under duress or undue influence when signing the PNA.
- Individual Considerations – whether one of the parties was in a particular emotional state or under particular pressure when the PNA was signed or whether there was a significant difference in the age or maturity level of one of the parties.
- Left without Means – whether enforcement of the PNA will leave one party without the means to cover their reasonable needs.
Therefore, if you intend to use a PNA to manage your assets, we suggest that you seek legal advice to assist you in creating an appropriate instrument to manage your pre-marital wealth and your joint assets during the marriage.
At JC Legal we understand that this subject can be a sensitive one. We can assist you in managing the discussion with your intended partner to help you achieve a good result. Contact us for a free initial consultation.
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