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As long as society continues to evolve, matrimonial law is ever changing. Agreements made between couples before or after marriage become more common. Premarital and post-marital agreements are known as nuptial agreements. Nuptial agreements are contracts, entered into by couples, which determine the rights and obligations of each of them in the event their marriage fails. Premarital agreements are drawn up and signed before marriage, while post-marital agreements are made during the marriage. Post-marital agreements can be made either while the couple is still together, or when they separate. Post-marital agreements entered into during separation are known as \u201cseparation agreements\u201d.<\/p>\n
The content of nuptial agreements normally include terms for:<\/p>\n
More complex agreements may arise where specific terms for a financial award result in the breakdown of the marriage.<\/p>\n
Separation agreements are agreements entered between couples once they have separated or on the occasion of their separation.\u00a0 These are common because they are valid contracts, according to\u00a0section 14<\/a>\u00a0of the\u00a0Matrimonial Property and Proceedings Ordinance<\/a>\u00a0(\u201cMPPO\u201d),\u00a0Cap. 192<\/a>. Furthermore, as in the Hong Kong Court of appeal case of\u00a0L v C<\/a>, the courts have affirmed that such agreements should be upheld unless there is a compelling case of unforeseeable circumstances.<\/p>\n If an agreement is made during marriage but before separation, then this is known as pre-separation post marital agreement.\u00a0 This is not a separation agreement under\u00a0section 14<\/a>\u00a0of the\u00a0MPPO<\/a>.\u00a0 These agreements will be governed by similar considerations as pre-marital agreements in accordance with the\u00a0Radmacher<\/em>\u00a0principles discussed below.<\/p>\n Nuptial agreements could be taken into account by the court when deciding the outcome in divorce proceedings involving ancillary relief and division of financial assets under\u00a0section 7(1)<\/a>\u00a0of the\u00a0MPPO<\/a>\u00a0as \u201ccircumstances of the case\u201d or \u201cconduct\u201d, and may be upheld in part or in whole.<\/p>\n When the court needs to determine whether or not to make an order in accordance with a nuptial agreement, the question of fairness is the key issue. In the UK, it is likely that the court will follow the terms of the nuptial agreement and hold the parties to their agreement if the parties:<\/p>\n <\/p>\n and if the agreement is not unjust.<\/p>\n This list is not exhaustive but provides a general basic guideline. A nuptial agreement should be given effect (that is, enforced) if it was \u201cfreely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.<\/em>\u201d (See: UK case\u00a0Radmacher v Grantino<\/em>)<\/p>\n In Hong Kong, the Court of Final Appeal in\u00a0SPH v SA<\/em>\u00a0adopted\u00a0Radmacher\u00a0<\/em>as good law.<\/p>\n <\/p>\n Historically, pre-marital agreements were regarded as being contrary to public policy on the grounds that provision for a divorced wife and children of the family is a matter of public concern. In UK case\u00a0Bennett v Bennett<\/em>, the court said that \u201cit is in the public interest that the wife and children of a divorced husband should not be left dependent on public assistance or on charity when he has the means to support them\u201d.<\/p>\n For example, if a party had not given full and frank disclosure before the signing of the pre-marital agreement and the wife is left destitute under the agreement, the agreement may be contrary to public policy.\u00a0 Another example might be that since the marriage, the parties’ financial situations may have drastically changed (for the better or worse), thus what was initially agreed under the pre-marital agreement might not be \u201cfair\u201d or reflective of the parties\u2019 living standard during the marriage.<\/p>\n Later, the UK court in the\u00a0Radmachner\u00a0<\/em>case stated that pre-marital agreements are not contrary to public policy. However, this view is just of persuasive value in Hong Kong. Furthermore, pre-marital agreements cannot restrict parties from applying to the court for orders for financial arrangements. In Hong Kong, the Court of Final Appeal in\u00a0SPH v SA<\/em>\u00a0endorsed the principle.<\/p>\n [\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":" [et_pb_section fb_built=”1″ _builder_version=”3.22″][et_pb_row _builder_version=”3.25″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text admin_label=”An overview” module_class=”posttitle” _builder_version=”4.9.7″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”] IV. Nuptial agreements [\/et_pb_text][et_pb_text _builder_version=”4.9.7″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” hover_enabled=”0″ sticky_enabled=”0″] As long as society continues to evolve, matrimonial law is ever changing. Agreements made between couples before or after marriage become more common. Premarital and post-marital agreements […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":" Adoption is a legal process by which parental rights and responsibilities over a child are transferred from the birth parents to the adoptive parents. An adoption in Hong Kong must be effected in accordance with the Adoption Ordinance , Cap. 290<\/a> , Laws of Hong Kong. The guiding principle in the adoption process is the \u201cbest interests of the child\u201d ( section 8<\/a> of the Adoption Ordinance<\/a> ).<\/p> Local adoption service in Hong Kong is provided by the Adoption Unit of the Social Welfare Department and three non-governmental organizations, as Accredited Bodies:<\/p> The statutory requirements concerning the accreditation system in respect of local adoption in the HKSAR are set out in sections 26<\/a> , 26A<\/a> and 26B<\/a> of the Adoption Ordinance<\/a> .<\/p>","_et_gb_content_width":"","footnotes":""},"categories":[43,27,29],"tags":[],"class_list":["post-935","post","type-post","status-publish","format-standard","hentry","category-marriage-and-co-habitant-issues","category-matrimonial-matters","category-topics"],"yoast_head":"\n\n
B. Pre-marital agreements and public policy<\/h2>\n