A prenuptial agreement signed outside China is not automatically invalid simply because it was executed abroad. In an international marriage, a Chinese court may recognize and give effect to a foreign prenuptial agreement, particularly where the agreement deals with the ownership and division of marital and premarital property.
However, enforceability in China depends on several factors, including the applicable law, the terms of the agreement, the circumstances in which it was signed, and whether any provisions conflict with mandatory rules or public policy under Chinese law.
Article 1065 of the Civil Code of the People's Republic of China allows spouses to agree in writing that property acquired before or during marriage will be:
separately owned by each spouse;
jointly owned;
partly separately owned and partly jointly owned; or
otherwise allocated between them as agreed.
Such an agreement is generally binding between the spouses.
Accordingly, a foreign prenuptial agreement providing, for example, that each spouse will retain his or her premarital property may, in principle, be recognized in China.
There is no general rule requiring a prenuptial agreement to have been signed in China or notarized by a Chinese notary in order to be valid.
For an international marriage, determining the applicable law is often the first important issue.
Under the Law of the People's Republic of China on the Application of Laws to Foreign-Related Civil Relations, spouses may agree that their property relationship will be governed by:
the law of the habitual residence of either spouse;
the national law of either spouse; or
the law of the place where their principal property is located.
If the spouses have made no valid choice of law, the law of their common habitual residence generally applies. If they have no common habitual residence, their common national law applies.
Therefore, a clause stating that a prenup is governed by, for example, New York, California, English or Australian law should not simply be assumed to be effective in China. A Chinese court would first consider whether the chosen law falls within the choices permitted under Chinese conflict-of-laws rules.
Even where a prenup is valid under foreign law, a Chinese court may still examine issues such as:
whether both parties entered into the agreement voluntarily;
whether there was fraud, coercion or other circumstances affecting genuine consent;
whether the agreement clearly identifies the relevant assets and liabilities;
whether the agreement is in writing;
whether the provisions violate mandatory Chinese laws; and
whether enforcement would be contrary to China's public policy.
The fact that each party received independent legal advice before signing may provide useful evidence concerning voluntariness and informed consent, although independent legal representation is not, by itself, a universal statutory requirement for a marital property agreement under Chinese law.
A foreign prenup often covers much more than property ownership.
For example, it may contain provisions concerning:
spousal maintenance or alimony;
child custody;
child support;
inheritance rights;
compensation following divorce;
infidelity;
restrictions on filing for divorce; or
financial penalties if one party initiates divorce.
These provisions cannot necessarily be enforced in China merely because the parties signed them.
In particular, matters involving children are subject to applicable Chinese conflict-of-laws and family-law rules, with particular emphasis on the protection of the child's interests. Chinese law also separately governs litigation divorce, maintenance and parent-child relationships.
A clause that improperly restricts a person's freedom to divorce or otherwise conflicts with mandatory Chinese law or public policy may therefore be unenforceable even if other parts of the prenup remain effective.
Where the prenup covers real estate located in China, the agreement should be reviewed particularly carefully.
For example, a prenup may state that: “The apartment located in Beijing shall be the Wife's separate property.”
Such a provision may establish contractual rights between the spouses.
However, it does not necessarily mean that ownership shown in China's real estate registration system changes automatically.
The contractual effect of a marital property agreement and the proprietary effect of real estate registration are separate legal issues. Rights against third parties, mortgages and property registration may therefore need to be considered independently.
An agreement between spouses mainly regulates rights between the spouses themselves.
Under Article 1065 of the Civil Code, where spouses agree that property acquired during marriage will be separately owned, that arrangement may affect liability for one spouse's debts where the creditor knew of the arrangement.
A prenup should therefore not be assumed to override the rights of banks, creditors or other third parties.
If a dispute comes before a Chinese court and foreign law is applicable, the content of that foreign law may need to be established before the court.
The Supreme People's Court's Judicial Interpretation on the Application of Laws to Foreign-Related Civil Relations (II), effective from 1 January 2024, provides that where the parties have chosen foreign law, they have an obligation to provide the relevant foreign law. Chinese courts may also ascertain foreign law through various channels, including legal experts and professional foreign-law ascertainment institutions.
In practice, this may require submitting:
the relevant foreign statutes;
applicable case law;
information regarding the validity and current status of those rules;
explanations of their relevance to the dispute; and
where appropriate, an expert opinion on foreign law.
This is an important practical consideration when drafting a prenup involving both China and another jurisdiction.
Consider the following situation:
A Chinese citizen and an Australian citizen live in Australia before marriage. They sign a prenuptial agreement in Sydney. Both receive independent legal advice. The agreement states that Australian law applies and identifies their assets in China and Australia.
Several years later, they divorce before a Chinese court.
It would be incorrect to assume that the agreement is invalid simply because it was signed in Australia.
The Chinese court would instead consider, among other things:
whether the dispute constitutes a foreign-related marital property relationship;
which law governs the relevant issue;
whether the parties' choice of law is valid under Chinese conflict-of-laws rules;
whether the prenup itself was validly entered into;
whether the particular provision being relied upon is enforceable; and
whether Chinese mandatory rules or public policy affect the result.
The court may therefore recognize some provisions of the agreement while declining to enforce others.
A foreign prenuptial agreement can be legally effective in China, particularly in relation to the allocation of premarital and marital property.
However, a foreign prenup should not be regarded as automatically or entirely enforceable in China.
For couples with assets, residence or potential divorce proceedings involving China, it is advisable to conduct a China enforceability review before signing the agreement or before relying on an existing foreign prenup.
Particular attention should be given to the following issues:
Governing Law | Separate Property | Marital Property | Chinese Real Estate | Debts | Spousal Support | Children | Inheritance | Divorce-Triggered Clauses | Third-Party Rights
A properly coordinated cross-border prenuptial agreement can substantially reduce uncertainty if the marriage later becomes subject to proceedings in more than one jurisdiction.
This article is intended for general information only and does not constitute legal advice. The enforceability of a prenuptial agreement depends on the specific facts, the wording of the agreement and the laws applicable to the individual case.
By David Gao
David Gao is a Chinese lawyer with more than 20 years of legal practice experience. He also holds a certificate from the China Accreditation Test for Translators and Interpreters (CATTI). He has a strong command of legal English and is fluent in spoken and written English.
In 2018, Mr. Gao was selected for the Ministry of Justice’s National Talent Pool of 1,000 Lawyers with Foreign-Related Legal Expertise.
Throughout his legal career, Mr. Gao has handled a wide range of foreign-related civil and commercial matters. He has extensive experience in cross-border divorce, international inheritance, foreign-related litigation, and the drafting and review of English-language contracts.
Email: gaohexin@jingsh.com; gaohexin@163.com
Tel/Wechat: +86 136 1115 8067
