August 3, 2021
Due to the fear of the unknown, intending couples are increasingly adopting strategies to protect their assets before marriage. One of such precautionary method is the adoption of a prenuptial agreement. The agreement in China is currently enforceable under Article 19 of the 2001 Marriage Law. Even when the agreement is enforceable in China, signing the agreement is considered alien to their way of life but rather western culture. People have different concerns about this practice in China. Where prenuptial issues are raised, the other party may have a negative perception on what the future holds.
The divorce rate in China is still on the rise, but accepting a pre-nuptial agreement is a term many Chinese are yet to embrace. In China, where properties are acquired, they are equally shared at the verge of divorce except on a few occasions. However, in recent times, the practice is acceptable among some persons, especially wealthy individuals and foreign nationals. Before proceeding, it would be worthwhile to understand the concept and the provision of Article 19 of the 2001 Marriage Law in China.
A prenuptial agreement is a contract agreed to by a couple to list every asset owned by each of the intending couples and determine their rights towards those assets before, during and after marriage. Due to the fear of losing one’s asset to a partner due to separation, people tend to consider pre-nuptial agreement. Based on Article 19 of the 2001 marriage law in China, “a man and a woman can determine before marriage, if the asset owned before and during marriage shall be individually owned or jointly owned”. This makes it easy for the couple not to have dispute over properties in the event of separation.
It should be noted that the agreement entered into by the intending couple is binding and enforceable under China law. Where there is an agreement regarding the payment of a debt owed by any couple to any individual, such debt shall be paid from the asset individually owned by the couple.
The term asset or property is a generic word used to denote what is owned by an individual. The Supreme Court ruling in China stipulates the nature of assets which should be considered in the pre-nuptial agreement in 2003. Among these are housing allowance, income from investment, income earned from intellectual property, insurance and compensation earned by an unemployed individual.
Is a prenuptial agreement more for the wealthy and international marriages?
Statistics have shown that international marriage between China nationals and other countries is currently on the rise. Reports have also shown that signing a prenuptial agreement is mostly done by wealthy individuals. These are people involved in diverse international trade and have large-scale financial resources. In a bid to avoid the transfer of their wealth due to a legal divorce, they consider the prenuptial agreement as an effective tool.
Getting married to a foreign spouse may be exciting initially but may become sour as time goes by. To prevent legal battles over ownership tussle during divorce proceedings, it is therefore imperative to protect oneself from such unforeseen legal tussle. In most cases, this agreement is mostly used by realist.
How to get it prepared between Chinese nationals and a foreigner
Where the intending couple involves Chinese nationals and a foreigner, the process of signing the prenuptial agreement is not as tedious as it seems. It begins by seeking the services of a lawyer who is quite competent in drafting a prenuptial agreement. The document is considered legal and enforceable in China whether the individual resides in China or not. Once the pre-nuptial agreement is drafted, the lawyer is required to sign the document. This is necessary as the lawyer would be held liable for any mistakes contrary to the applicant's views. It is also relevant that the document should be written in the local language of the applicant. Since this is about a Chinese applicant and a foreigner, the document would be written in Chinese and translated to the spouse's language.
It should be noted that the services of a licensed translator should be secured being a vital document. The translator is required to vet the document by signing and attaching an official seal. In the event of mistakes made by the translator contrary to the views of the original document, such an individual shall be subject to liability. To ensure the document have legal backing, it must be signed before the marriage license.
Foreigners in China
A prenuptial agreement can also be obtained where the parties involved are not Chinese nationals, and not from the same country but reside in China. Before the wedding day, the intending couple must sign the prenuptial agreement to make it a legal document. The process of obtaining the prenuptial agreement is similar to that of Chinese nationals except on a few grounds. First, the applicant would contact a lawyer from the home country or its embassy in China to draft the document. Secondly, the document shall also be drafted in the applicant's local language and translated to the other spouse's language. However, signing the document by a competent lawyer and a translator still stands.
Please contact us (inquiries@chinalawsolutions.com) to get in touch with an experienced lawyer who can assist with preparing for a prenuptial agreement in China. All inquiries are treated as confidential.