Prior to the marriage registration, a man and a woman may create a prenuptial agreement of their choice and in writing, and then have it notarized to ensure their rights and obligations towards and of their property. The prenuptial agreement comes into full force and effect when the competent authorities issue the certificate of marriage registration.

The prenuptial agreement is a separate document and it is not recorded in or with the certificate of marriage registration, nor is it a condition of marriage.

For a prenuptial agreement to be valid and consistent with legal regulations, its basic contents must include:

Firstly, the determination of common property vs. separate property of the husband and wife.  This agreement separates the assets of each party in the marital relationship.

Secondly, the rights and obligations of the husband and wife toward common property, separate property, and related transactions – property for meeting the family’s essential needs. Thereby, the property obligations of each party towards a third party in civil transactions are determined.

Thirdly, conditions, procedures, and principles of the property division upon termination of the property regime. This is considered a record of the legal consequences of the agreement should the agreement be deemed as invalid and/or terminated in accordance with the law.

Additionally, the law also stipulates that husband and wife can included miscellaneous relevant content in the prenuptial agreement. In the prenuptial agreement, the husband and wife have the right to agree on amendments and supplements to the original agreement as long as the form and basic content are consistent with the regulations of the prenuptial agreement.

It should also be noted that, when implementing the prenuptial agreement, if there are issues that have not been agreed upon by the spouses or are unclear, Articles 29, 30, 31 and 32 of the Law on Marriage and Family and the corresponding provisions of the statutory property regime will apply.

Although the relevant laws do not officially stipulate that the agreement on the matrimonial property regime is a contract, in principle, it is a type of transaction. As it is a type of transaction, these agreements are subject to certain conditions to be valid.

There are three reasons in which the Court will declare that an agreement on a prenuptial agreement is invalid:

Firstly, it neglects to meet the conditions on the effect of transactions prescribed by the Civil Code, as well as other relevant laws;

Secondly, it violates articles 29, 30, 31, or 32 of the Law on Marriage and Family;

Thirdly, its content seriously infringes upon the rights of support and inheritance, as well as other legal rights and interests of parents, children, and extended family.

According to the guidance in Clause 2, Article 6 of Joint Circular No. 01/TTLT-TANDTC-VKSNDTC-BTP dated January 6, 2016: “The content of the prenuptial agreement is invalid as a result of a serious violation of the rights of support and inheritance and other legal rights and interests of parents, children, and extended family as specified in Point c, Clause 1, Article 50 of the Law on Marriage and Family 2014, or to deprive heirs of the right of inheritances but is not consistent with the content of the will (in accordance with the Civil Code), or to violate the lawful rights and interests of parents, children, and extended family as prescribed by the Law on Marriage and Family and other relevant laws”.

The prenuptial agreement may prevent marital disputes. For more information and/or assistance drafting a prenuptial agreement, please contact us via phone number 0916 545 618 or email hung.le@cnccounsel.com and  thanh.tran@cnccounsel.com .