婚前婚後協議 Separation, Prenuptial and post-nuptial agreements

婚前婚後協議

何謂婚前婚後協議？
顧名思義，婚前協議為夫婦雙方結婚前的協議，婚後協議為結婚後雙方訂立的協議。雖然協議不一定有法律效力，但是兩者均用作婚姻關係破裂時作為各方在婚姻上的權利和義務的保障。

我需要訂立協議嗎？
如果你正在養育上一段婚姻所生的子女、希望保護某特定資產，甚至得悉對方欠下龐大的債務或者雙方的資產有很大差別，又或者女方結為人妻後為家庭放棄成事業，那麼婚前婚後協議可保障雙方在關係破裂時就財政和撫養權上的安排。

婚前婚後協議有效嗎？
法庭一直因為政策為由拒絕承認婚前婚後協議，直至Granatino v Radmacher [2010] UKSC 42法國銀行家與德國千金的離婚案中法庭才承認該案的婚前和婚後協議。該案中的協議訂明雙方在婚前和婚後所得的資產將獨立處理。法庭判女方勝訴，法官認為除非協議不公平，如一方沒有完整的披露資產、或被施壓下簽訂協議，否則法庭不會干預雙方按自由意志訂立的協議。

如果婚前婚後協議在雙方意志清醒時訂立來處理雙方的資產，香港法庭一般會承認該協議。在L v C [2007] HKFLR 334一案中，一對經營夜總會的夫婦在分居後訂立了兩份協議。這對夫婦結婚三十年，女方在男方所設的美容院相遇並結為夫婦後，多年來建立了不少財富，雙方在財政上也十分平等。法官認為案中的協議沒有不公平的地方，無需干涉雙方按自由意志訂立的條款。

由此可見，只要婚前婚後協議沒有不公平的地方，協議便可生效。當然訂立協議之前應當尋求法律意見以確保協議能保障雙方的利益。

Separation, Prenuptial and post-nuptial agreements

What is nuptial agreement generally?
Prenuptial agreement refers to agreement entered into by a couple before marriage while post-nuptial agreement refers to agreement entered into during the marriage, both of which purports to govern the rights and obligations of the parties should the marriage be dissolved.

Why prenuptial and post-nuptial agreements?
Prenuptial and post-nuptial agreements are desirable if one of the parties has children from a previous marriage, or wants to protect a particular asset, or even is in great debt. There may be a great disparity of wealth between the parties. The wife might want to protect herself before giving up a successful career for the stake of the marriage. Prenuptial or post-nuptial agreements may protect the parties’ financial and custody arrangements.

Are prenuptial and post-nuptial agreements effective?
Traditionally, they are not recognized by the court for policy reasons. However, case law has developed to recognize both categories since Granatino v Radmacher [2010] UKSC 42. This was a case of a marriage between a French investment banker and a very wealthy German national. In that case, the parties came to a prenuptial agreement agreeing that each party forego any interest or benefit from the other’s property acquired before or during the marriage. The court held in favour of the wife to give effect to the agreement as long as it was freely entered into with all the information available to both parties in the absence of pressure unless it would be unfair to do so.

The Hong Kong courts generally uphold prenuptial and post-nuptial agreements when parties were legally competent in signing the agreement. This can be illustrated in L v C [2007] HKFLR 334. This is a 30-year-marriage of a couple running nightclub business and property investment business. Considerable wealth was accumulated since the husband establishing a beauty-parlour and the wife working there when they first met. The parties have two post-nuptial agreements upon separation. In this case, the court gives effect to the agreements because they are not unfair under the circumstances and the court gives effect to the intention of the parties in a freely negotiated bargain.

Therefore, as long as the agreement is fair the court is likely to give effect to it in the case of separation. If you plan to make such an agreement, you and your partner are advised to seek legal opinions before signing one to ensure its effectiveness.