On the Prenuptial Agreement: Buying Insurance for the Journey of Love

Marriage is a long and beautiful journey in life. It is at once a promise between two people and a bond between two families. But before setting out, is it worth our while to take out an insurance policy for this journey, against the problems that may arise in the years to come? That policy is what we commonly call the prenuptial agreement.

In the world of prenuptial agreements, Article 1065 of the Civil Code of the People’s Republic of China offers us a clear guide. A man and a woman may agree that property acquired during the marriage, as well as premarital property, shall belong to each of them separately, to both of them jointly, or in part separately and in part jointly. Such an agreement shall be made in writing. Where there is no agreement, or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Code shall apply.

Marriage—this romantic and sacred covenant—contains not only the deep affections of two people, but touches upon every dimension of two lives, indeed of two families. Yet whether out of a wish to protect each party’s rights, or to guard against disputes that may arise, the making of a prenuptial agreement has grown ever more common in modern society. Below I offer a brief analysis of the prenuptial agreement from a few different angles.

The Reasons

First, a prenuptial agreement can help spouses clearly distinguish between individual property and marital community property. Though marriage means a sharing of life, each person has property of their own, and a prenuptial agreement can help both parties clarify, before the wedding, to whom such property belongs, avoiding unnecessary disputes down the road.

Second, in the event of divorce, a prenuptial agreement can protect each spouse’s individual property from division. Though no one wishes their marriage to reach such a point, to prepare in advance for a possible eventuality is wise and pragmatic.

Third, a prenuptial agreement can protect what one party regards as part of their family’s inherited legacy—business interests, real estate, or a treasured heirloom, for example. Such assets often carry special emotional value and historical significance, and a prenuptial agreement can ensure they receive due respect and protection within the marriage.

Next, a prenuptial agreement can stipulate in advance what estate or insurance benefit the other party is to receive should one spouse pass away. Such foresight can help the one who remains find better material security amid the pain of losing a loved one, and pass more steadily through life’s hardest stretch.

Beyond this, a prenuptial agreement can also protect one spouse from debts the other incurred before the marriage. A prenuptial agreement can clarify this point, so that each person may begin their married life on a fair footing.

Of course, a prenuptial agreement can also protect the interests of children from a previous relationship. For those who have been married before and have children, a prenuptial agreement can set out clearly how, within the new marriage, the rights and welfare of a former partner and of the children are to be protected and cared for.

Finally, a prenuptial agreement can spare the parties the enormous legal fees, the media coverage, and the years of emotional entanglement that a contentious divorce may bring. Establishing rules and terms in advance allows problems, when they arise, to be resolved more quickly and more peaceably, reducing needless pain and loss.

On the whole, creating a prenuptial agreement is a responsible attitude toward married life. Through clear terms, we can reduce, as far as possible, the disputes and troubles along the journey of marriage, making every step of it brighter and more secure.

Points to Note

First, an oral agreement of any kind is regarded as invalid. This means every term should be set down in writing and confirmed by the signatures of both parties. A written agreement not only helps avoid future disputes but also ensures that both parties have ample time and opportunity, before the marriage, to review all the terms.

Second, the signing of a prenuptial agreement must rest on a foundation of fairness and free will. Any agreement signed under coercion is legally invalid. If you find yourself forced to accept unequal terms, you have the right, and ought, to preserve all evidence that may prove your position, for use in possible future legal disputes.

Following from this, a manifestly unfair agreement is likewise invalid. This means the rights and obligations within the agreement must be reciprocal. If, for example, the agreement stipulates that all property belongs to one party while all debt is borne by the other, such an agreement, so plainly lacking a fair balance, cannot stand up in court. Another example: if the agreement contains a clause stating that if one party is unfaithful they will receive no property upon divorce, such an agreement may also be struck down by the court as manifestly unfair.

Moreover, a prenuptial agreement cannot impose any kind of restriction on personal rights; it can concern only matters of property and debt. It cannot, for instance, stipulate that one party may not file for divorce, or that if they do, all property shall go to the other party. As for provisions on child custody, the best interests of the child must be the paramount consideration, and any clause that violates this principle will be regarded as invalid.

When it comes to the disposition of property, an agreement can deal only with marital community property; it cannot dispose of property belonging to others. In real life, some private entrepreneurs may blur the line between household assets and company assets, treating assets held in the company’s name as personal or marital community property—yet this is not permitted by law.

As for provisions on property, they also cannot rest solely on the present state of one’s assets; they must take into account the possible transformation of property and its returns. In signing a property agreement, one should consider possible future changes in property, so that the agreement remains applicable over a long span of time.

And as for the gift or attribution of real estate, it must be made clear that if property owned by one party is agreed to belong to the other, this is regarded as a gift. Under the law, where real estate is given as a gift, the gift may still be revoked at any time before the registration of the change in ownership.

Finally, there is a difference between a property agreement and a divorce agreement. A property agreement takes effect the moment both parties sign it, whereas a divorce agreement takes effect only after the couple completes the registration of divorce. Therefore, if problems arise in the relationship but the couple is not yet contemplating an immediate divorce, it is advisable to sign a property agreement rather than a divorce agreement. Only in this way can you ensure your rights receive the fullest protection.

In sum, the signing of a prenuptial agreement calls for careful thought and prudent action, and in the course of signing, one should observe the provisions and principles of the law. Only then can a prenuptial agreement play its proper role in your married life to come, offering you and your partner ample protection.

The Conversation

The prenuptial agreement—this seemingly weighty legal document—how can it be given warmth, so that the party in the weaker position feels a mild and gentle sunshine rather than a cold and cheerless rain? How can the process of drafting this contract be turned into a tender passage within a love story, so that every conversation is charged with emotional depth and resonance?

First, open communication is a key that unlocks the latches of both your hearts. When you propose signing a prenuptial agreement, help your partner understand that this agreement is not a one-sided wall of defense but a shield you hold together, protecting your love and warding off unknown risks.

Second, begin planning the prenuptial agreement early, giving each other ample time to grow used to the idea and to understand it. It should not fall like a bolt from a clear sky, shattering your peace, but should appear as naturally in your life as a spring breeze upon the face—just like planning a shared future.

Of course, to ensure that both parties stand on fair ground, the help of professionals is essential. Their independent legal counsel can clarify your respective rights and keep the conversation from straying off the track of fairness.

The process of drafting a prenuptial agreement should always preserve fairness and respect. This agreement concerns not only the division of property but also embodies the respect and understanding the two parties hold for each other. The party in the weaker position needs more understanding and care, and they too should be able to see, within the agreement, the protection of love.

At the same time, the process must be full of human feeling. Any doubt or objection should be met with understanding and respect; however difficult the process of signing a prenuptial agreement may be, no one’s feelings should be overlooked.

Even as you sign a prenuptial agreement, make sure your partner feels safe. This agreement will not weaken the bond between you; on the contrary, it is a firm promise to your love and a powerful protection of it.

Finally, the signing of a prenuptial agreement is only a beginning; the conversation should continue. Review and update the agreement regularly, so that, as life changes, it always reflects the true wishes of both parties and protects your shared rights and interests.

The prenuptial agreement is both a legal safeguard and a promise of love. Every conversation, every exchange, is a deep guarding of that love—letting love find, within this agreement, the warmth of each other.

A Word to Parents

Certain pivotal moments in life, such as a child’s marriage, often shape a family’s future profoundly. For high-net-worth families, this decision-making process is all the more fraught, for it involves the complex interweaving of emotion, family, wealth, and succession. The prenuptial agreement—a seemingly simple legal instrument—can serve both as a wise tool of asset protection and as a source of conflict and misunderstanding. Seen in this light, how the parents of an unmarried child guide them in handling this matter becomes especially important.

Questions for Parents

The questions posed below are meant to help parents think more deeply about this matter:

• “Why do I hope (or hope not) that my child will sign a prenuptial agreement?”
• “What personal experiences or beliefs have shaped my view of prenuptial agreements?”
• “Am I willing to leave this decision to my son or daughter?”

Advice for Parents

Here, then, is some advice to help parents handle this delicate question more skillfully:

Start the conversation early: ideally, begin discussing prenuptial agreements before your child enters a serious relationship. That way it will not be seen as a judgment on any particular boyfriend or girlfriend.

Emphasize family legacy and family tradition: for example, “The reason our family chooses prenuptial agreements is that we want to ensure the family enterprise can be passed down smoothly across generations. We see ourselves as stewards of these assets, not simply their owners. These assets benefit not only us but also family members present and future.”

Do not shoulder it alone: the process of a prenuptial agreement can be very complex, and as a parent you should not try to handle it single-handedly.

Recommend well-matched professionals: parents often recommend legal professionals to their children and their future spouses. But they should also respect the child’s choice—the child may prefer advisers better matched to their own age, gender, location, and area of expertise.

The advice and questions above are all meant to help parents guide and support their children, when facing the question of a prenuptial agreement, in a way that is more understanding, respectful, and fair. This will not only help protect the family’s wealth and legacy but also allow the children, when facing an important decision in life, to feel more understood and supported.

In Closing

At the banquet of life, the prenuptial agreement may be the most subtle of accompanying wines. In its ever-shifting bouquet lie the coolness of the law, the weight of wealth, the purity of love, and the hopes of a family. Facing it, we must all savor it prudently and with feeling; this is a responsibility, and also an expression of love.

This document, mingling reality with ideal, responsibility with love, will in the end become a testament of love, a lighthouse for the family, guiding each generation as it sails the ocean of wealth—so that on the road of seeking love and family, they may always keep a clear sense of direction.

Please remember: a prenuptial agreement is not the end of life but a new beginning. It is a symbol of respect for the future, of a promise to love, of trust in the family. So long as we hold goodwill in our hearts and are full of love, we can use the prenuptial agreement to weave a future that is fairer, more harmonious, and more filled with love.