[Direct answer]A prenuptial agreement concluded in accordance with the law is legally binding. According to Article 1065 of the Civil Code, both men and women may stipulate in writing that the prenuptial property and the property acquired during the marriage shall belong to each of them, jointly owned, or partly owned by each of them. The agreement shall be binding on both parties; the prerequisite for its validity are that both parties have the corresponding civil capacity, their expressions of intent are genuine, and the content does not violate the mandatory provisions of the law or public order and good customs (Article 143). For complex properties such as equity and cross-border assets, you can consult a professional for advice.Special services and other case-related servicesTeam.

I. Problem Background and Typical Scenarios

Pre-marital property agreements were once common in remarried families and among high-net-worth individuals, but now their scope of application is becoming increasingly broad: one party owning multiple properties or large sums of savings before marriage, startup company shareholders worried about equity dilution, parents contributing funds for their children's pre-marital home purchases, and couples with large income gaps hoping to maintain financial independence, all consider using agreements to clarify ownership rights. The most pressing concerns for parties involved are: whether the agreement is legally binding, whether it will be deemed invalid by the court, whether it needs to be notarized, and whether it can stipulate the ownership of post-marital income. If the agreement is drafted improperly, it may not only fail to achieve the intended purpose of asset separation, but also become a new focus of dispute during divorce proceedings.

II. Key points of contention

  • Dispute over the validity of the contract: If a party alleges that the agreement was signed under fraud or coercion, he/she may request its revocation in accordance with Articles 148 and 150 of the Civil Code. Whether the signing process was voluntary needs to be supported by evidence, and the right of revocation is also subject to the statute of limitations.
  • Content boundaries: Pure property ownership clauses are usually valid; clauses involving restrictions on divorce freedom, child custody ownership, and other identity-related content are often deemed invalid. Mixed clauses need to be evaluated separately to avoid the entire clause being questioned.
  • Form and proof: The agreement must be in writing; failure to notarize it does not affect its validity, but it may affect the determination of its authenticity and the voluntariness of the signatory's consent. Evidence of the performance of the agreement is just as important as the evidence of the signing process.

III. Professional analysis by Henglue Law Firm

A sound prenuptial property agreement should ensure that "the property is clearly listed and the terms are enforceable". The key points of drafting include: listing the scope and ownership certificates of prenuptial property item by item, and attaching property certificates, deposit certificates, equity certificates, etc. as annexes; clarifying the ownership of post-marital income and appreciation gains, distinguishing between natural appreciation and active operating income; stipulating the method of assuming each party's debts to avoid being implicated in the other party's debts after marriage; setting rules for handling property changes (such as sale or exchange); and clarifying the procedures for amending and supplementing the agreement. It is recommended that the signing process be completed under the witnessing or notarization of a lawyer, and the video of the signing process and communication records be preserved to reduce the risk of being alleged to have been coerced in the future. It should be noted that the agreement stipulates property relations and cannot replace the handling of child custody and inheritance arrangements; for matters involving company equity and cross-border assets, consultation with a professional is recommended.Special services and other case servicesThe team collaboratively assesses the tax and registration consequences and works withInheritance succession and family property division servicesThe arrangement of succession should consider the future disposition of the deceased's assets.

IV. Practical Suggestions and Legal Basis

Legal basis: Article 1065 of the Civil Code (effective January 1, 2021) is the direct basis for prenuptial property agreements, which explicitly stipulates that the agreement shall be in writing and legally binding on both parties. If the couple stipulates that the property acquired during the marriage belongs to each party individually, the debts incurred by one party shall be satisfied with his/her own property if the other party is aware of such stipulation. Article 143 stipulates the validity requirements for civil legal acts, namely that the actor has the corresponding civil capacity, the expression of intention is true, and the act does not violate mandatory provisions or public order and good customs. Articles 148 and 150 stipulate that agreements signed under fraud or coercion may be requested to be revoked. Articles 1062 and 1063 form the basis for comparing the agreed terms with the statutory property system. Practical advice: Before signing the agreement, both parties should consult lawyers to avoid one party dominating the terms; avoid vague wording in the provisions, and ensure that the property description corresponds to the ownership certificates; properly keep the original and attachments after signing; and promptly sign a written supplementary agreement if there are major changes in the marital situation.

5. Henglu Law Firm's Reminder

The value of a prenuptial agreement lies in "clarifying things in advance", rather than revisiting past issues after the fact. Most disputes over the effectiveness of prenuptial agreements stem from casual signing procedures, clauses that exceed legal boundaries, or unclear descriptions of assets. Although not a prerequisite for effectiveness, notarization and lawyer witnessing can significantly reduce the risk of disputes. Signing the agreement is just the first step. It is equally important to implement the agreement as agreed upon and maintain the consistency of the asset status with the agreement's description after marriage. The fact that one party fails to implement the agreement for a long time may also affect the court's determination of the true intent. Only by using prenuptial agreements in conjunction with tools such as wills, insurance, and family trusts can a complete asset planning cycle be formed. If you need to draft or review an agreement, you can do so throughBeijing Henglue Law FirmMake an appointment for a professional evaluation.

Q1: Is a prenuptial agreement only valid if it's notarized?

No, it's not necessary. Article 1065 of the Civil Code only requires that the agreement be in writing. Notarization is not a prerequisite for the agreement to take effect. After both parties sign the agreement, it is established and binding on both parties. The significance of notarization lies in enhancing authenticity and probative force: notarized agreements are harder to be refuted when the other party alleges fraud, coercion, or forgery of signatures, and it can also reduce the possibility of the other party denying the agreement afterwards. In addition to notarization, lawyer's witnessing, video recording of the signing process, and keeping communication records can also help to fix the voluntariness of the signing. For agreements involving large amounts of property or complex terms, it is recommended to complete notarization or witnessing with the assistance of professionals before signing, and to keep the ownership certificates as an attachment.

Q2: Can a prenuptial agreement stipulate that each spouse's income after marriage belongs to them individually?

Yes. According to Article 1065 of the Civil Code, 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 them, or partly owned by each of them and partly jointly owned. The ownership of the spouse's salary, bonuses, and investment income after marriage is also within the scope of the agreement. It should be noted that after agreeing on a separate property system, a spouse's debts to third parties can only be paid off with their personal property if the third party is aware of the agreement; otherwise, the creditor may still claim against both spouses. Therefore, it is advisable to simultaneously stipulate debt assumption and disclosure obligations in the agreement, and to make arrangements for the sharing of household expenses (such as mortgage payments and children's expenses) to prevent the agreement from being disconnected from actual performance.

Q3: Is the prenuptial agreement signed under duress valid?

An agreement signed under duress may be requested to be revoked. According to Article 150 of the Civil Code, if a party uses coercive means to make the other party perform a civil legal act against their true intention, the coerced party has the right to request its revocation; if it is signed under fraud, it can also be revoked in accordance with Article 148. The revoked agreement shall not be legally binding from the beginning. The party claiming to have been coerced shall bear the burden of proof, such as threat records, police reports, witness testimonies, etc. Moreover, the right to revoke the agreement shall be exercised within the statutory time limit from the date when the party knows or should have known the grounds for revocation, and the right to revoke the agreement shall be extinguished if it is not exercised within the time limit. Keeping video and communication evidence when signing the agreement is the key to preventing such disputes and proving the voluntariness of the signing.

Q4: Can the prenuptial agreement be amended or supplemented after it has been signed?

Yes. Property agreements fall within the scope of the parties' autonomy of will. If the situation changes after marriage, the parties may, by mutual consent, sign a written supplementary agreement to amend, refine, or terminate the original provisions, such as the ownership of newly acquired property, the handling of property after a home purchase and replacement, and the sharing of expenses after having children. The supplementary agreement should also be in writing and signed by both parties. It is recommended to keep it together with the original agreement. For major property matters, notarization or witnessing may also be carried out. It should be noted that unilateral repudiation does not produce any amending effect. If one party disposes of the property agreed to belong to both parties or the other party's property without authorization, the other party may still assert rights and claim compensation for losses in accordance with the original agreement.

Q5: Can a prenuptial agreement stipulate who will get custody of the children in the event of a future divorce?

It cannot be effectively agreed upon. The custody of children belongs to a relationship of status. In accordance with the principle of maximizing the interests of minors, the court will make a dynamic judgment based on the age of the children, the parenting conditions of both parties, and the wishes of the children at the time of divorce. Parents cannot pre-determine the custody of children through agreements before marriage. Such clauses do not have legal effect, but the property portion of the agreement is still valid and needs to be evaluated separately. However, the parties can make reasonable arrangements in the agreement regarding the manner of bearing child support, sharing of education and medical expenses, etc., which can be used as a reference for negotiation during divorce. When drafting the agreement, the property clauses should be separated from the identity clauses to avoid affecting the execution of the entire agreement due to the invalidity of the identity clauses.

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