[Direct answer]If the prenuptial agreement is not drafted properly, it may result in some clauses being invalid or meaningless, or even trigger secondary disputes during the divorce. According to Article 1065 of the Civil Code, the property agreement between spouses must be in writing and legally binding on both parties. However, if there are no provisions or unclear provisions in the agreement, the property will still be treated as the couple's legal joint property, which is essentially a waste of effort. There are three common consequences: if the prenuptial property is "agreed" to be given to the other party but never transferred, the other party may revoke the gift at any time according to Article 32 of the Interpretation of the Marriage and Family Code (I); provisions that dispose of third-party property or restrict personal freedom are invalid; and clauses that stipulate "leaving with nothing" as a condition of divorce are often difficult to gain support. Before signing the agreement, it is necessary to list the property, ownership, and handling methods item by item, and timely transfer or notarize important real estate. For more details, please refer to the following link:Divorce litigation legal servicesAndBeijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

1. Article 1065 of the Civil Code of the People's Republic of China (effective on January 1, 2021)

Both spouses may agree that the property acquired during the marriage and the premarital property shall be owned by each of them individually, jointly owned by both spouses, or partially owned by each of them and partially jointly owned. Such agreements shall be in writing and legally binding on both parties. Where there is no agreement or the agreement is unclear, the statutory marital property regime set forth in Articles 1062 and 1063 of the Civil Code shall apply. This constitutes the general principle of the agreed property regime in China. There are three key points to note: the written form is a formal requirement, as oral agreements are almost impossible to substantiate; "legally binding on both parties" means that the spouses cannot arbitrarily revoke the agreement after marriage; and an unclear agreement does not automatically become void, but rather reverts to the statutory joint ownership, which often becomes the entry point for disputes. Additionally, the spouses' property agreements cannot be used to oppose bona fide third parties. If one party uses the agreement to isolate debts from the other party, the creditor may still pursue claims against both spouses.

2. Article 32 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (I) (effective January 1, 2021)

Before marriage or during the continuance of the marriage relationship, if the parties agree to donate all the real estate owned by one party to the other, and the donor revokes the donation before the change of ownership of the donated property is registered, and the other party requests the court to order the continuation of the performance, the people's court may handle it in accordance with Article 658 of the Civil Code—that is, before the transfer of rights, the donor may revoke the donation at will. The consequences are very direct: even if the agreement clearly states "the premarital house belongs to you", as long as the ownership has not been transferred or there are no irrevocable arrangements such as notarization, the party who wrote it may regret it at any time, and the other party may not get the house. This is the most common failure clause in premarital agreement disputes. It is important to handle the change of ownership registration or notarization of important real estate in a timely manner.

3. Practical judicial interpretation (typical cases of invalidity and limited effectiveness)

The court's review of such agreements generally follows three principles: Firstly, provisions that dispose of others' property, such as stipulating that the property registered in the parents' name with their funds belongs to the young couple, are usually invalid. Secondly, provisions that restrict freedom of divorce and personal relationships, such as "the party who initiates the divorce shall leave the marital home empty-handed" and "waiving visitation rights", are often deemed invalid. However, some courts will consider them on a case-by-case basis if the agreement stipulates that the defaulting party shall pay reasonable property compensation. Thirdly, the validity of compensation clauses in "faithfulness agreements" is subject to individual assessment. High-amount penalties purely aimed at punishment are unlikely to be fully supported. Judges tend to respect written agreements that are genuine, specific, and free from fraud or coercion. If the agreement only stipulates that "each party's property belongs to them respectively" without listing specific items, the burden of proof for marital asset commingling will still exist.

II. Practical Experience of Henglue Law Firm

Based on Henglue's practical observations in handling marriage and family cases, there are four common types of disputes arising from poorly drafted prenuptial agreements: First, the terms are too general. For example, if the agreement simply states "each party's premarital assets will remain their own after marriage" without listing property registration numbers or account information, disputes immediately arise over the ownership of assets acquired or appreciated during the marriage. Second, the "agreement" is mistakenly written as a "gift". If the premarital property is promised to the other party but not transferred for years, it can be revoked at any time according to Article 32 of the Interpretation of the Marriage and Family Code. Third, the agreement is inconsistent with actual registration and investment records. If the source and ownership of the parental funds used to purchase the property are not clearly stated, disputes may arise among the elderly, the couple, and their children during the divorce. Fourth, oral amendments to the agreement during the marriage lead to conflicting interpretations. In this case, the original written agreement may become a weapon used against the other party.

The judge's attitude in the trial is relatively stable: property agreements that are genuinely signed, specific in content, and do not involve personal coercion will be seriously enforced; conversely, if the agreement is unclear, it will fall back to statutory joint ownership, and the personal restriction clauses will be removed, and the part that disposes of others' property will be directly invalidated. There are three pitfalls that parties are most likely to fall into - using online templates without considering their own property structure, ignoring the transfer of ownership and the preservation of evidence because they think "signing it is enough"; and not supplementing the agreement after major property changes (inheritance, exchange, equity changes). The value of a prenuptial agreement does not lie in the number of clauses, but in each clause being clear, verifiable, and enforceable. It is far cheaper to consult a professional before signing than to litigate after divorce. Relevant services can be referred to for reference.Divorce litigation legal servicesFor more knowledge about family law, please refer toBeijing Henglu Law Firm.

III. Frequently Asked Questions

Q1: Is a prenuptial agreement valid if it's not notarized?

It's effective. Notarization is not a prerequisite for the effectiveness of a prenuptial agreement. A written agreement signed by both parties in good faith is legally binding. The value of notarization lies in fixing the signing time and ensuring the authenticity of the signatories' intentions. In the future, if the other party claims to have been deceived, coerced, or denies having signed the agreement, notarized documents will carry greater evidentiary weight. For agreements involving large amounts of property, complex provisions, or where one party has shown a tendency to back out, it is recommended to have the agreement notarized or witnessed by a lawyer. For families with simple property structures, it suffices to sign the agreement properly, keep a copy for each party, and retain the relevant evidence.

Q2: Is the clause that "the party who initiates the divorce will leave the house with nothing" valid?

Provisions restricting the freedom of divorce are often deemed invalid as they violate the principle of marital freedom. Therefore, relying on such provisions to constrain the other party is usually futile. However, this doesn't mean the entire agreement is invalidated. If the agreement stipulates that the party at fault must provide reasonable property compensation to the other party upon divorce, some courts will take this into account when dividing assets. A more reliable approach is to clearly specify the ownership of assets - which house, which account, and what proportion belongs to whom. This is much more effective than punitive clauses implemented after the fact.

Q3: The agreement stated that the house would belong to me, so why didn't I get it during the divorce?

The most common reasons are misinterpretation of the nature of the property and failure to complete the necessary procedures. If the other party's pre-marital property was only "agreed to be yours", it is legally considered a gift. Before the change of ownership registration is completed, the other party can revoke the agreement at will according to Article 32 of the Interpretation (I). However, if the property has already been transferred, or the agreement has been notarized and meets the conditions of irrevocability, it will be more difficult to retract the agreement. In addition, if the property is registered in someone else's name, the agreement cannot dispose of the property at all. After signing the agreement, it is important to transfer the ownership of the important real estate as soon as possible, keep the payment and registration certificates, and the commitment will only be considered effective after these actions are completed.

Q4: Can a prenuptial agreement stipulate who will have custody of the children?

No. The custody of children is determined based on the principle of what is in the best interests of the minor children, and the court will determine it on a case-by-case basis based on the parties' custody conditions at the time of divorce. For children who have reached the age of eight, their true wishes must also be respected. The provisions of the agreement that "prescribe" custody rights will not take effect. At that time, the court will still make a judgment based on the actual circumstances. What can be stipulated in a prenuptial agreement are only property-related matters such as cost sharing and education expenditure arrangements. Trying to "lock in the custody of children in the agreement" is not only ineffective, but also likely to exacerbate conflicts.

Q5: If I've already signed a problematic agreement, is there still a way to remedy the situation?

Yes. During the continuation of the marriage relationship, the parties may, by mutual consent, sign a supplementary agreement or re-agree on the ownership of the property, refine the general terms, and transfer the ownership of the property where necessary. If one party uses fraudulent or coercive means to make the other party sign against their true intention, the party who has been deceived or coerced may request the revocation of the agreement according to law, but attention should be paid to the burden of proof and the exercise period. The earlier the parties discover the loopholes in the terms, the lower the cost of rectification will be. If they wait until the divorce dispute erupts to review the past, the burden of proof will be completely different.

IV. Suggestions for Protecting Rights

  • Attach a "List of Assets" before signing: Specify the ownership certificate number and ownership of each item, including real estate, vehicles, deposits, and equity shares, without using vague expressions.
  • For matters involving the ownership of real estate, it is necessary to handle the transfer of ownership or obtain a notarization in accordance with the law as soon as possible after signing the contract, in order to prevent any possibility of revocation.
  • Do not include clauses that restrict freedom of divorce or personal relationships. Instead, specify the property arrangements using specific property items and numerical values.
  • After major property changes such as purchasing a house, inheriting property, or changes in equity ownership, it is necessary to promptly sign a supplementary agreement and keep the relevant documents as proof.
  • Large-sum property agreements should be drafted or reviewed by lawyers before signing, to avoid the potential pitfalls of online templates.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Divorce litigation legal services·Beijing Henglu Law Firm