III. Basic content of the prenuptial agreement

  • Terms on conditions, procedures, and principles of division upon termination of the prenuptial agreement
  • This is also the content established based on the volition of the parties. The prenuptial agreement can terminate at any time when the husband and wife agree or the husband/wife dies or is declared dead by the Court, or the husband and wife divorce, or the prenuptial agreement is declared void.
  • The fact that the parties agree on specific conditions, procedures, and principles for asset division upon termination of the agreement will limit disputes and also saves time and costs for the parties when dividing assets.

Terms on amendments and supplements to the prenuptial agreement

  • The issue of amending and supplementing the content of the agreement is specified in Article 49 of the Law on Marriage and Family 2014, detailed guidance in Article 17 of Decree 126/2014/ND-CP. Accordingly, husband and wife can modify part or all of the content of the agreement, or change from the agreed property regime to the statutory property regime. The amendment and supplement to the content of the agreement must be made in writing, which is notarized or authenticated. The amended and supplemented agreement takes effect from the date on which it is notarized or authenticated.
  • When amending and supplementing the content of the agreement, the husband and wife must still provide information related to the spouse’s property to the third party. 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.
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Terms on legal consequences of terminating the agreed property regime

  • In the first case, because one of the husband/ wife has died or is declared dead by the Court: Clause 2, Article 66 of the Law on Marriage and Family 2014 stipulates “When there is a request for division of the estate unless the couple has reached agreement on the property regime, community property of husband and wife shall be divided into two. The property portion of the spouse who is dead or declared to be dead by a court shall be divided in accordance with the inheritance law”. According to the above provisions, in case the husband and wife have a prenuptial agreement, the division of the estate will apply according to the established agreement. Consequently, the parties need to stipulate the division of property upon termination of the prenuptial agreement.
  • In the second case, due to divorce: In case the prenuptial agreement contains provisions on property division after divorce and the prenuptial agreement is not invalid, these contents shall apply to divide the property of husband and wife upon divorce. In case the prenuptial agreement does not have provisions on property division after divorce or the prenuptial agreement is declared entirely invalid by the Court or the terms on property division after divorce is declared invalid by the Court, the regime as prescribed by law shall be applied to divide the property of husband and wife upon divorce. For matters that are not agreed upon by husband and wife, or that the agreement is unclear or partially invalid, Articles 59 and Articles 61 to 64 of the Law on Marriage and Family shall be applied for settlement.
  • The third case, due to the invalid of the prenuptial agreement: Article 6 of the Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP stipulates that: i) In case the prenuptial agreement is declared entirely invalid by the Court, the statutory property regime shall be applied; ii) In case the prenuptial agreement is declared partially invalid, the contents that are not invalidated shall still be applied; for the invalid content, the corresponding provisions on the statutory property regime shall be applied.
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IV. Terms on the invalid prenuptial agreement

Cases about the invalid prenuptial agreement are specified in Article 50 of the Law on Marriage and Family 2014.

  • The first case: “It fails to meet the conditions on the effect of transactions prescribed by the Civil Code and other relevant laws”. Accordingly, compared with Article 117 of the 2015 Civil Code, the valid conditions for a civil transaction include that the husband and wife must be completely voluntary when agreeing; the agreement is by the will of the parties, the parties are not deceived, coerced, threatened, confused; the purpose and content of the agreement do not violate the prohibition of the law and social morality.
  • The second case: “It violates Article 29, 30, 31 or 32 of the Law on Marriage and Family”. Accordingly, the content of the pre-marital property agreement must not violate: General principles of the property regime between husband and wife; Rights and obligations of husband and wife in meeting the essential needs of the family; Transactions related to the house as the sole residence of the husband and wife; Transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets not required by law to be registered for ownership and use.
  • The third case: “Its contents seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members”. This regulation is intended to protect the legitimate rights and interests of other family members. Where an agreement is reached to evade the support obligation specified in Articles 110 to 115 of the Law on Marriage and Family or to deprive the heirs of the inheritance rights regardless of the content of the will under the provisions of the Civil Code or violates the lawful rights and interests of parents, children and other family members as provided for by the Marriage and Family Law and other relevant laws, this agreement shall be considered invalid.
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Above is the post: “Some issues with the prenuptial agreement (Part 2)”. We hope this post was useful to you.

Best regards,