A matrimonial agreement, also known as a prenuptial agreement or postnuptial agreement, is a contract entered into by a couple before or during their marriage that outlines the division of their assets and debts in the event of a divorce or separation. While matrimonial agreements are not legally binding in Hong Kong, they can still be persuasive to a court in determining the fair division of assets and debts.
Key Points of a Matrimonial Agreement
Full Financial Disclosure: Both parties must disclose their full financial positions to each other, including their assets, debts, and income.
Independent Legal Advice: Each party should seek independent legal advice before signing the agreement to ensure that they understand the terms and implications of the agreement.
Fairness: The agreement should be fair to both parties and should not be unconscionable or one-sided.
Common Provisions of a Matrimonial Agreement
Division of Property: The agreement may specify how the couple's property, such as real estate, investments, and personal belongings, will be divided in the event of a divorce or separation.
Maintenance Payments: The agreement may specify whether one spouse will pay maintenance payments to the other spouse after a divorce or separation.
Premarital Debts: The agreement may specify whether premarital debts will be considered marital debts and divided as such in the event of a divorce.
Business Interests: The agreement may address the division of ownership interests in any businesses owned by the couple.
Estate Planning: The agreement may address how the couple's estate planning documents, such as wills and trusts, will be affected by the agreement.
Enforceability of Matrimonial Agreements in Hong Kong
While matrimonial agreements are not legally binding in Hong Kong, the courts will consider them when making orders for the division of matrimonial property and ancillary relief. The courts will take into account the following factors when considering whether to enforce a matrimonial agreement:
Whether the agreement was entered into freely and voluntarily by both parties.
Whether both parties had full disclosure of each other's financial positions.
Whether both parties had independent legal advice.
Whether the agreement is fair and reasonable.
Whether the circumstances have changed significantly since the agreement was entered into.
If a court finds that a matrimonial agreement is not enforceable, it will make orders for the division of matrimonial property and ancillary relief based on the factors set out in the Matrimonial Proceedings and Property Ordinance (Cap. 192).
Seek Legal Advice
If you are considering entering into a matrimonial agreement, it is important to seek legal advice from an experienced family law attorney to ensure that your rights are protected and that the agreement is fair and enforceable.
Sample Matrimonial Agreement
Matrimonial Agreement
This Matrimonial Agreement (the "Agreement") is made and entered into as of the [Date] by and between [Name of Party 1], residing at [Address of Party 1] (hereinafter referred to as "Party 1"), and [Name of Party 2], residing at [Address of Party 2] (hereinafter referred to as "Party 2").
Recitals
WHEREAS, Party 1 and Party 2 are contemplating marriage;
WHEREAS, Party 1 and Party 2 desire to enter into this Agreement to set out their respective rights and obligations in relation to their property and finances in the event of their marriage breakdown;
WHEREAS, Party 1 and Party 2 have each had the opportunity to consult with independent legal counsel and have each had the opportunity to fully understand the terms and implications of this Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
1. Full Financial Disclosure
Each party agrees to fully disclose to the other party their respective financial positions, including but not limited to:
All assets owned by the party, including real estate, investments, personal belongings, and business interests;
All debts owed by the party, including mortgages, credit cards, and other liabilities;
The party's income and expenses;
Any prenuptial agreements or other agreements relating to the party's finances.
2. Independent Legal Advice
Each party agrees to seek independent legal advice from an attorney of their own choosing with respect to this Agreement. The parties' attorneys shall meet and discuss the Agreement and ensure that each party understands the terms and implications of the Agreement.
3. Division of Property
In the event of the breakdown of the marriage, the parties agree that their property will be divided in accordance with the following principles:
Premarital Assets: Premarital assets (assets owned by either party prior to the marriage) shall remain the separate property of the respective owner.
Marital Assets: Marital assets (assets acquired during the marriage) shall be divided equally between the parties.
Business Interests: The parties shall agree on the division of any business interests owned by either party. If the parties cannot agree, the court shall determine the division of the business interests.
4. Maintenance Payments
In the event of the breakdown of the marriage, either party may be entitled to maintenance payments from the other party. The amount of maintenance payments shall be determined by the court based on the following factors:
The parties' financial circumstances;
The needs of the parties;
The length of the marriage;
The contributions of each party to the marriage;
Any other relevant factors.
5. Premarital Debts
Premarital debts shall remain the separate debt of the respective owner.
6. Estate Planning
Each party agrees to make any necessary changes to their estate planning documents, such as wills and trusts, to reflect the terms of this Agreement.
7. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong. The parties agree to submit to the exclusive jurisdiction of the courts of Hong Kong in relation to any dispute arising out of or in connection with this Agreement.
8. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.
9. Amendment
This Agreement may be amended only by a writing signed by both parties.
10. Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck from this Agreement and the remaining provisions shall remain in full force and effect.
11. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
[Signature]
[Printed Name]
[Party 1]
[Signature]
[Printed Name]
[Party 2]
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