Can a Prenuptial Agreement Be Challenged or Voided?

Can a Prenuptial Agreement Be Challenged or Voided?

A prenuptial agreement in Vietnam can be declared void, in whole or in part, but only by a court and only on grounds the law sets out. Until a court rules, a properly made agreement continues to bind both spouses, and the spouse who wants it set aside has to prove why it should fall. Most challenges come up during a divorce, at the point where the agreement starts deciding who keeps what.

This article looks at the question from the point of view of a spouse who wants to challenge a prenup, or who expects the other spouse to. It covers who can bring a challenge, the grounds that matter in practice, the deadlines, and what happens to the couple’s property if the agreement fails. For the wider question of how prenups are treated in Vietnam, see our guide on whether prenuptial agreements are enforceable.

Only a Court Can Declare a Prenuptial Agreement Void

A prenup in Vietnam must be made in writing before the marriage is registered, and it must be notarised or certified (Article 47 of the Law on Marriage and Family). That formality matters when the agreement is later attacked. Under Vietnam’s notarisation law, a notarised document is binding on the parties and serves as evidence. The facts recorded in it do not need to be proved again unless a court declares the document void.

This places the burden firmly on the spouse bringing the challenge. Refusing to follow the agreement, or telling the court it now feels unfair, achieves nothing on its own. The challenging spouse has to identify a specific legal ground and prove the facts behind it.

Who Can Challenge a Prenup in Vietnam

Either spouse can ask the court to declare the agreement void. So can a person whose lawful rights the agreement infringes, such as a child or another family member, or that person’s guardian. This is set out in Joint Circular 01/2016, which guides how courts apply the law on matrimonial property agreements. Because an agreement can be void for seriously infringing a family member’s inheritance rights, a challenge may also arise after one spouse has died, for example from a child who argues that the agreement cuts into an inheritance share the law protects for them.

The challenge does not have to be a separate case. Where a court is already dealing with a dispute that the agreement affects, most often a divorce with a property claim, a spouse can ask within that case for the agreement to be declared void. The court must then decide the point. If it finds the agreement void in whole or in part, it has to say so in its judgment or decision.

The Legal Grounds for Voiding a Prenuptial Agreement

Article 50 of the Law on Marriage and Family sets out three grounds:

• The agreement fails the general conditions for a valid civil transaction. These come from the Civil Code. Each spouse must have had legal capacity and must have signed voluntarily, without deception, threats or a serious mistake, and the content and form must be lawful.
• The agreement breaches the basic rules on spouses’ property in Articles 29 to 32 of the law, such as equal rights over common property, meeting the family’s essential needs, and protecting the family home.
• The agreement seriously infringes the right to support or inheritance of a spouse, a child or another family member.

What a prenup may and may not contain is a topic of its own, covered in our guide to what can and cannot go into a prenuptial agreement. The rest of this article focuses on how a challenge works.

How These Grounds Play Out in a Challenge

The grounds themselves are short. Whether a challenge succeeds depends on how they fit the facts, and a few situations arise often.

Hidden or misstated assets. A common challenge arises when one spouse discovers during the divorce that the other held far more than they disclosed when the prenup was signed. The ground here is deception. Showing that the other spouse turned out to be wealthier than expected is not enough. The challenging spouse has to show that they were misled about something that mattered, and that they would not have signed on those terms had they known the truth.

Pressure before the wedding. Many spouses describe being handed the agreement days before the ceremony. Under the Civil Code, a threat or coercion means deliberately forcing someone into a transaction to avoid harm to the life, health, honour, reputation, dignity or property of that person or their close relatives. Ordinary pressure, such as a deadline close to the wedding date, does not meet that test by itself. It can still support a challenge when it sits alongside other facts, such as a spouse who did not understand what they were signing.

A foreign spouse and language. Where one spouse does not read Vietnamese well and the terms were not properly explained, the question becomes whether they understood what they agreed to. In this kind of challenge, the notarisation record, including how the document was translated and explained at signing, is examined closely. Where the prenup was signed in another country rather than in Vietnam, separate questions arise about which law governs it, which we cover in our guide to prenuptial agreements for mixed-nationality couples.

Defects of timing and form. An agreement signed after the marriage was registered cannot operate as a prenup at all, and one that was never notarised or certified does not meet the required form. These challenges are the most clear-cut, although a challenge based on form is subject to the time limits discussed below.

Content that leaves someone without support. Joint Circular 01/2016 gives examples of agreements that fail on this ground. One is an agreement under which a spouse transfers all their assets to the other, leaving nothing to meet an existing duty to support a family member. Another is an agreement that deprives an adult child who cannot work of the inheritance share the law protects for them. In that second case, the agreement is void only to the extent of the child’s share.

Arguments That Do Not Void a Prenup on Their Own

Some of the reasons spouses most often give for wanting a prenup set aside are not grounds in themselves under Vietnamese law. Knowing which ones fall short saves time, and in several cases the argument still matters in a different way.

• The agreement is unfair or one-sided. Article 50 contains no general ground of unfairness. A one-sided agreement fails only where it crosses one of the legal limits, for example by leaving the family unable to meet its essential needs, or by seriously infringing a right to support or inheritance.
• Circumstances have changed. A prenup does not expire, and the birth of children or the passing of many years does not void it. Children’s rights to support are protected whatever the agreement says, and spouses who want the agreement to reflect a new situation can change it together, as explained below.
• The other spouse was unfaithful. Infidelity, or other fault in the breakdown of the marriage, is not a ground for voiding the agreement. Under Article 59 of the Law on Marriage and Family, a valid prenup governs how property is divided on divorce. The statutory rules, including the court’s power to take each spouse’s fault into account, apply only to matters the agreement leaves out or leaves unclear.
• Neither spouse had a lawyer. Vietnamese law does not require each spouse to take independent legal advice before signing. The absence of advice does not void the agreement by itself, although it can be relevant evidence where a spouse argues they did not understand the terms.

Time Limits for Challenging a Prenuptial Agreement

Where the challenge rests on the general Civil Code grounds, the Civil Code’s two-year time limit applies (Article 132). When the two years start depends on the ground:

• For deception or mistake, from the time the spouse knew or should have known about it.
• For threats or coercion, from the time the threat or coercion ended.
• For a defect in form, from the date the agreement was made.

If no challenge is brought within that period, the agreement can no longer be attacked on that ground. Some grounds have no time limit at all, including content that breaches a prohibition in the law.

These start dates make a real difference. A spouse who discovers concealed assets during a divorce is usually still within time, because the clock for deception runs from discovery. A challenge based only on a defect in form is counted from signing, so it may already be closed by the time a marriage breaks down years later.

What Happens if a Prenup Is Voided

Voiding a prenup does not affect the marriage itself, only the property regime that governs it. If the whole agreement is void, the couple are treated as never having made one, and the statutory property regime applies from the date of the marriage. In broad terms, property acquired during the marriage is then common property, divided on divorce under the ordinary rules rather than the agreement’s terms. If only part of the agreement is void, only that part is replaced by the statutory rules, and the rest of the agreement continues to apply.

Where property has already changed hands under a provision that is later declared void, the general rule in the Civil Code is that what was transferred must be returned, or its value paid where it cannot be returned. Third parties who dealt with the property in good faith can have their position protected. This is one reason these cases need careful handling when land, company shares or a business are involved.

Can Spouses Cancel a Prenuptial Agreement Together?

Not every prenup that comes to an end goes through a court. During the marriage, spouses who both want to can change their agreement or end it without any challenge at all. Under Article 49 of the Law on Marriage and Family and Article 17 of Decree 126/2014, they can amend part or all of the agreement, or agree to switch to the statutory property regime instead. The new agreement must be notarised or certified, and it takes effect from that date.

A change of this kind works for the future. Property rights and obligations that arose before it remain valid unless the spouses agree otherwise, and the spouses must give third parties they deal with, such as lenders, the relevant information about the change. This is a very different outcome from a court declaring the agreement void, where the agreement is treated as if it had never applied.

What Makes a Prenuptial Agreement Hard to Challenge

The same rules tell the other spouse what keeps an agreement standing. A prenup is in its strongest position when it was notarised well before the wedding rather than at the last minute, when each spouse’s assets were disclosed and that disclosure was recorded, when a foreign spouse had the terms translated and explained, and when its content stays within the limits the law protects, especially on support and inheritance.

Weaknesses can also be fixed during the marriage through the amendment process described above. Correcting a known problem that way is far simpler than defending a flawed agreement in court later.

Challenging or Defending a Prenup in Vietnam

Whether a particular prenup can be voided depends on its wording, how it was made, and what has happened since it was signed. Our prenuptial agreement lawyers at Family Lawyers Vietnam act for spouses on both sides, assessing whether an agreement can be challenged, bringing or defending that challenge within a divorce, and reviewing or amending existing agreements so that they hold up. We have advised many couples, including foreign nationals from a wide range of countries, on prenuptial agreements in Vietnam. Reach us at [email protected].