Some issues with the prenuptial agreement (part 1)

The agreed marital property regime allows husband and wife to freely dispose of each individual’s property while ensuring the common interests of the family. Depending on the customs, practices, and laws of each country, the agreement on the property pre-marriage regime of husband and wife is called by many different terms, but the most common is “The Prenuptial Agreement”. In recent years in Vietnam, this agreement has an increasing need for access. Therefore, within the scope of this article, we mention and analyze some issues about the prenups to improve its effectiveness.

I. The definition of the prenups

Currently, the Vietnamese legal system does not have specific provisions on the definition of a prenuptial agreement. The law on marriage and family has only provided several provisions, but not enough, on the right to choose to apply the property regime as agreed upon by the husband and wife (Clause 1, Article 28 of the Law on Marriage and Family 2014).

According to the opinion of some jurisprudence researchers, the prenups is a written agreement made before marriage about the property ownership relationship of husband and wife including the origin of establishing community and separate property and principles of property division of husband and wife.

II. Regulations on the basis for establishing and raising effect to the prenuptial agreement

According to Article 47 of the Law on Marriage and Family 2014, the conditions for husband and wife to choose and apply a prenuptial agreement include:

• Firstly, in terms of time, a prenuptial agreement must be made before marriage. This provision is also applied by many countries with an agreed property regime. The prenuptial agreement cannot be established after the time of marriage registration.
• Secondly, the prenuptial agreement takes effect from the date of marriage registration. In other words, marriage registration is a mandatory condition if the parties want to choose this mode. Cases of illegal marriage or marriage registration at an improper agency, in principle, will not be able to apply the prenups, even though a written agreement has been established in advance.
• Thirdly, the prenuptial agreement must be made in writing and notarized, and authenticated. The process and procedures for signing the prenuptial agreement are carried out by the Law on Notarization 2014 and regulations of competent state agencies.

III. Basic content of the prenuptial agreement

Article 48 of the Law on Marriage and Family 2014 stipulates the basic contents of a prenuptial agreement, including:

Terms on determining community property and separate property of husband and wife

• This content is important because determining the rights of husband and wife to each specific type of property is the basis for property division after the termination of the prenuptial agreemeninv. The determination of community property and separate property of husband and wife is guided in detail in Article 15 of Decree No. 126/2014/ND-CP detailing several articles and measures to implement the Law on Marriage and Family (“Decree No. 126/2014/ND-CP”). Specifically, husband and wife may agree on property determination according to one of the following contents:

a) Matrimonial property includes community property and separate property of husband and wife;

b) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is community property;

c) Husband and wife have no community property and all property a spouse has before marriage and during the marriage period is separate property of that spouse;

d) Property is determined as otherwise agreed by husband and wife.

• Therefore, the parties can freely agree on any method of determining community property or separate property, as long as such agreement is not contrary to the provisions of law and customs. In case some issues have not been agreed upon by the spouses or are unclear, these issues will be applied similarly to the property regime according to law.

Terms on rights and obligations of husband and wife toward community property, separate property, and related transactions; property to meet the family’s essential needs

• For this clause, the parties can freely agree, however, the content of the agreement must be consistent with the provisions of law and ensure the fulfillment of obligations and responsibilities of the husband and wife.
• Husband and wife must ensure conditions to meet the family’s essential needs (Essential needs means ordinary needs for food, clothing, accommodation, learning, medical care, and other ordinary needs which are indispensable in the life of each person and family). If the prenuptial agreement violates this content, it may be declared invalid. Therefore, the parties need to agree on the property to ensure the essential needs of family members, especially in cases where the parties agree to only have separate property, no community property.
• When husband and wife agree on the determination of rights and obligations concerning property, property relations with related third parties must be based on and implemented by such agreement. When establishing and performing property transactions with a third party, husband and wife are obliged to provide this person with relevant property information; if the husband or wife violates this obligation, the third party is considered to be in good faith and has their interests protected according to the provisions of the Civil Code.

Above is the post: “Some issues with the prenuptial agreement (Part 1)”. We hope this post was useful to you.

Best regards,