Prenuptial agreements for international people based in Hong Kong may be tremendously useful but must be carefully drafted by counsel with international experience and knowledge.
Such agreements were once considered at common law to be contrary to public policy because they ousted the jurisdiction of the court to grant ancillary relief.
Statutory law sets forth the relevant factors to be considered by a court in resolving the financial issues between divorcing spouses. Matrimonial Proceedings and Property Ordinance, sec. 7 (H.K.). These factors do not include an agreement between the parties.
The Hong Kong Court of Final Appeal recently issued an important case concerning the potential impact of ante-nuptial and separation agreements in Hong Kong. SPH v. SA (formerly known as SA)  HKCFA 56 (9 June 2014).
The case concerned the impact in Hong Kong of a German prenuptial agreement between German nationals. The Hong Kong court held that the existence of the German prenuptial agreement and also a German separation agreement was plainly a factor to consider on the husband's application to stay the Hong Kong divorce proceedings on the ground of forum non conveniens. However, apart from the agreements, the real and substantial connection of the parties with Hong Kong was overwhelming. The Judge at first instance had failed to give appropriate weight to the factors connecting the parties, the marriage, and the matrimonial home with Hong Kong and, therefore, the intermediate Court of Appeal had appropriately refused to stay the case. The Court of Final Appeal expressly ruled that the decision of the UK Supreme Court in Radmacher v Granatino  UKSC 42,  1 A.C. 534 – giving qualified effect to prenuptial agreements – represents the law in Hong Kong. However, the Hong Kong court did not clarify the Radmacher ruling.
In Radmacher, the Court ruled that courts “should give effect to a nuptial agreement that is freely 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.” A prenuptial agreement might have “decisive weight” but must always be reviewed on a case-by-case basis for fairness.
How Hong Kong will apply Radmacher in the future remains to be seen.
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