When a man and a women decide to get married, very seldom they think of the day when they have to deal with the issues related to divorce. Unfortunately this type of issues exists and is quite often happening regardless the couple expects or not. Therefore, it is necessary to have a formal written agreement between the parties when the marriage has not been registered. This document is called a “Prenuptial Agreement.”
What is a prenuptial agreement?
Article 385 of the 2015 Civil Code stipulates that “ A contract is an agreement between the parties on the establishment, change or termination of civil rights and obligations“, or Article 3 of 2014 Law on Marriage and Family also stipulates that “ Marriage means the relation between husband and wife after they get married“. Therefore, in essence, a prenuptial agreement is a legally binding agreement, established to create principles to resolve arising disagreements and disputes related to the responsibilities and property of couples in marriage and especially in the event of divorce or death of one party.
In a positive way, prenuptial agreement makes us feel more assured when living together and minimize legal and financial risks in the long run.
In terms of contents, depending on the laws of each country, couples may or may not be allowed to agree on different issues. However, a prenuptial agreement will usually include the following main contents:
- Assets determined as common and private property of each spouse created before or during the marriage period.
- The responsibility of the spouse with respect to shared finance, take care of the children and daily living of the family.
- Liability for personal debts.
- Responsibility for stepchildren of the spouse (if any).
- Conditions, procedures and principles of property division upon termination of the property regime;
- The principle of division of property between the spouses upon divorce.
- Responsibility for raising and supporting children after divorced.
Prenuptial agreements are relatively common in many countries. Some countries, such as the U.S., do not allow to agree on child custody and the support after divorced; or under Australian law, spouse can agree on the support after divorced. However, this content can still be invalidated by the Court if the agreed support is unreasonable and affects the well-being of the children after the parent divorced.
Legality of prenuptial agreement
It is a widely recognized and legally enforceable agreement in many countries around the world. Vietnamese law does not have the concept of “prenuptial agreement”, but Vietnamese law has a few regulations that is allowing for the establishment of prenuptial agreement.
Article 47 and Article 48 of the Law on Marriage and Family 2014regulates the property agreement of husband and wife. Based on that, when a couple agrees on the property regime, it also means that the couple is entering into a prenuptial agreement.
Two people agree to give each other the rights and obligations to perform a legitimate task, namely to become husband and wife. Therefore, it is legal to establish a prenuptial agreement including contents on property regime.
Principles of entering into prenuptial agreement
In order for the prenuptial agreement is compliant with the provisions of law, special attention should be paid to the following issues:
Firstly, about the timing: The agreement must be signed before two parties get married.
Secondly, about the form of establishment: Must be made in writing, notarized or attested.
Thirdly, about the condition of the agreement’s validity:
The agreement should avoid falling into cases where it is declared to be invalid partially or wholly by the Court for reasons such as:
a. Violation of conditions on effect of transactions prescribed the Civil Code and other relevant laws, such as:
- One of two parties has no civil act capacity, or be deceived or intimidated or coerced;
- The contents of the agreement violate prohibitory provisions of the law and are contrary to social morality;
- The agreement is established for falsity;
- The form of the agreement is not in accordance with the provisions of law, not made in writing, not notarized or attested.
b. Violation of the provisions of the Law on Marriage and Family relating to:
- General principles of the matrimonial property regime;
- Rights and obligations of spouse to meet the family’s essential needs;
- The transaction involves the home being the sole domicile of 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.
c. Seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members.
Notes when concluding a prenuptial agreement
Prenuptial agreement is not only set for couples having a lot of property, but also couples who do not have property can make this agreement. Because even if you enter into a marriage without property, you may inherit property or acquire property from other sources.
In addition, the prenuptial agreement helps to ensure the legitimate rights and interests of third parties – those who are involved in the matrimonial property regime. When spouses engage in civil transactions with third parties, thanks to a clear and specific agreement on the spouses’ property, they can assess the level of risk when they conduct transactions, gifts and pledges of property.
After reading our prenuptial agreement information, are you ready to make a decision on having an agreement in place?
Please contact us for more detailed instructions: letran@familylawyers.vn
