Ultimate Guide to Prenuptial Agreements in Vietnam 2024
In Vietnam, a prenuptial agreement is a legal document agreed upon by couples before marriage to determine which assets will be joint property, which assets will be separate property, the obligations of each party concerning debts, and several other issues.
It is evident that a prenuptial agreement is currently the best way for couples to protect their rights before entering into marriage and to minimize property disputes in the event of a divorce.
This article will provide comprehensive information about prenuptial agreements in Vietnam, including the drafting process, important considerations, and a standard prenuptial agreement template in accordance with legal regulations.
A prenuptial agreement (or marital agreement) in Vietnam is a document that records the spouse’s agreement before marriage to choose the property regime.
According to Article 28.1 of the Law on Marriage and Family No. 52/2014/QH13 dated June 19, 2014, spouses have the right to choose to apply either the statutory property regime or the agreed property regime as follows:
Article 28. Application of Property Regime for Spouses
1. Spouses have the right to choose to apply either the statutory property regime or the agreed property regime.
The statutory property regime for spouses is implemented according to the provisions of Articles 33 to 46 and Articles 59 to 64 of this Law.
The agreed property regime for spouses is implemented according to the provisions of Articles 47, 48, 49, 50, and 59 of this Law.
In practice, prenuptial agreements are often created by individuals with substantial assets, those who have been married multiple times, or those with children from previous relationships to separate their pre-existing assets from the joint property in the new marriage.
Example: Without an agreement, assets that a person had acquired before marriage could easily be considered joint marital property during the marriage and, therefore, would have to be divided with the other party in the event of a divorce.
What is the Purpose of a Prenuptial Agreement?
The main purpose of a prenuptial agreement is to clearly define the rights and obligations regarding property during the marriage between the couple.
In the event of a divorce, competent authorities (such as the court) will refer to the contents of this marital agreement to determine which assets are joint marital property and which are separate property.
>> Read more: Rights and obligations of Family Members in Vietnam Law.
What Does a Prenuptial Agreement Include?
The law allows the parties to freely agree on the contents of the prenuptial agreement based on ensuring the conditions for validity according to legal regulations.
According to Article 48.1 of the Law on Marriage and Family No. 52/2014/QH13 dated June 19, 2014, marital agreements may include:
- Assets considered joint property and separate property of each spouse;
- Rights and obligations of each spouse concerning joint property, separate property, and related transactions; assets ensuring the essential needs of the family;
- Conditions, procedures, and principles for the division of property when terminating the property regime;
- Other related content.
Specifically, the parties may agree to define joint and separate property in one of the following ways:
- The assets of the spouses will include joint property and separate property of each person. The parties may list specific items of joint and separate property and provide a method to determine whether any arising assets not listed are joint or separate property.
- The spouses have no separate property; all assets acquired by each person before marriage and during the marriage are joint property.
- The spouses have no joint property; all assets acquired by each person before marriage and during the marriage are separate property.
- Other mutually agreed terms.
Conditions for the Validity of a Prenuptial Agreement
Although the parties are free to agree on the contents of the prenuptial agreement, for these agreements to be effective, certain conditions must be met. According to current Vietnamese law, these conditions are as follows:
Firstly, the conditions for the validity of a civil transaction must be met.
According to Article 117.1 of the Civil Code No. 91/2015/QH13 dated November 24, 2015, a civil transaction is effective when it meets the following conditions:
Article 117. Conditions for the Validity of Civil Transactions
1. A civil transaction is effective when the following conditions are met:
a) The participants in the civil transaction have the legal capacity and civil act capacity suitable for the established civil transaction;
b) The participants in the civil transaction voluntarily agree to the transaction;
c) The purpose and content of the civil transaction do not violate legal prohibitions and are not contrary to social ethics.
Specifically, a prenuptial agreement will be valid when:
- Both participants are individuals who meet the conditions for marriage under legal regulations, are of sound mind, and are not incapacitated, restricted in civil act capacity, or have difficulty in cognition and behavior control.
- Both parties must voluntarily agree without coercion, force, or deception, and the prenuptial agreement must not be for a sham purpose.
- The purpose and content of the marital agreements must not violate legal prohibitions or social ethics.
Secondly, the agreement must not seriously violate the rights to alimony, inheritance rights, and other legal rights and interests of family members.
While the law allows freedom of agreement, a prenuptial agreement must not contain terms that severely restrict or violate the rights to alimony, inheritance, and other legal rights and interests of family members.
This means that certain contents cannot be agreed upon in a prenuptial agreement, as they may render the document invalid if ruled by the court. These include:
- Designating who will have custody of the children in case of divorce.
- Depriving a spouse, children, or other family members of their inheritance rights.
- Limiting alimony after divorce.
Thirdly, the agreement must not violate the provisions of the Law on Marriage and Family.
Articles 29, 30, 31, and 32 of the Law on Marriage and Family No. 52/2014/QH13 dated June 19, 2014, regulate certain rights and obligations of spouses in marital relationships.
Since these are foundational rights and obligations protected by law, the contents of the prenuptial agreement must not violate them. These include:
- General principles regarding the property regime of spouses (Article 29)
- Rights and obligations of spouses concerning the essential needs of the family (Article 30)
- Transactions related to the only residence of the spouses (Article 31)
- Transactions with bona fide third parties related to bank accounts, securities accounts, and other movable assets not required by law to be registered for ownership or use (Article 32)
How is Property Divided After Divorce if a Prenuptial Agreement Exists?
The marital agreements will be the basic basis for competent authorities (such as the court) to divide the property of the spouses after divorce.
According to Article 59.1 of the Law on Marriage and Family No. 52/2014/QH13 dated June 19, 2014, if the spouses have a prenuptial agreement, the competent authorities will apply the agreed contents to divide the property.
The property division will be conducted as follows:
- Assets will first be separated into joint property of the spouses, separate property of each person, joint debts of the spouses, and separate debts of each person.
- Joint debts of the spouses will be paid using joint property; separate debts of each person will be the responsibility of each individual using their separate property.
- The remaining joint property after paying joint debts will be divided according to a 50/50 ratio or another agreed ratio specified in the prenuptial agreement.
If the prenuptial agreement does not have specific provisions or the provisions are unclear, the court will apply the regulations of the Law on Marriage and Family No. 52/2014/QH13 dated June 19, 2014, to divide the spouses’ property. Therefore, consulting with a legal expert when drafting the prenuptial agreement is very important to ensure the agreement is clear and comprehensive, protecting the legal rights and interests of each party.
Prenuptial Agreement Drafting Process
Based on our experience, the following steps should be followed to avoid errors when drafting marital agreements:
Step 1: Discussion
Before officially drafting the prenuptial agreement, the couple should discuss and agree on the contents of the prenuptial agreement.
Consider the following questions to build an overview of the terms:
- What are each spouse’s separate assets before marriage? After marriage, will these separate assets become joint property?
- What are the joint assets of each person before marriage? After marriage, will these joint assets continue to be joint property?
- What criteria will determine what constitutes joint property and what constitutes separate property after marriage?
- How will the spouses manage and use joint property during the marriage?
- How will assets be divided in the event of a divorce?
Step 2: Prepare Information and Documents
To ensure the prenuptial agreement is accurately and fully drafted, both parties need to prepare the following information and documents:
- Personal documents: Copies of identity cards or citizen cards, passports.
- Proof of marital status.
- Property certificates: Documents certifying ownership of current assets (e.g., land use rights certificates, red books, pink books, vehicle ownership certificates, bank accounts, stocks, and other assets).
- Debt proof: Loan contracts, documents proving current debts.
- Other related documents: Any other documents related to the assets and financial obligations of each party.
Step 3: Drafting the Prenuptial Agreement
When drafting the prenuptial agreement, the following points should be noted:
- Clear and precise language: The agreement should be written in clear and understandable language while accurately using legal terms to avoid any misinterpretation.
- Specific details: Each asset and the method to determine joint and separate property, obligations, and rights of each party should be listed in detail.
- Consistency: The terms in the agreement should not contradict each other or violate legal regulations.
- Practicality: The terms should be practical and feasible to implement.
- Legal compliance: The agreement must comply with the current legal regulations on the rights and obligations of spouses.
We recommend that the couple seek advice from a lawyer to ensure the agreement is legally compliant, clear, and comprehensive.
Step 4: Signing and Notarizing the Prenuptial Agreement
The prenuptial agreement must be signed by both parties in the presence of a notary to ensure its validity and enforceability.
To notarize the prenuptial agreement, the couple must present the agreement and the documents mentioned in Step 2 at the notary office.
The notary will review the agreement and the documents, witness the signing, and issue a notarial certificate for the prenuptial agreement.
After notarizing the prenuptial agreement, both parties should keep a copy of the agreement and the notarial certificate in a safe place.
Important Considerations
According to our experience, the drafting of a Prenuptial Agreement often encounters the following issues:
Incorrect Timing
A Prenuptial Agreement can only be established BEFORE registering the marriage and will take effect upon the marriage registration. Therefore, if the parties have already been issued a Marriage Registration Certificate and then proceed to create a Prenuptial Agreement, such an agreement may be declared invalid.
In the case where spouses wish to divide their assets after marriage, they shall draft a document known as the “Asset Division Agreement during Marriage.”
Complications with Notarization
A Prenuptial Agreement must be notarized/authenticated by an authorized organization. However, the required documents may vary by locality.
Additionally, it is important to note that some notary offices may only approve the notarization of Prenuptial Agreements in Vietnamese.
Thus, without experience working with authorized notary and authentication agencies, there may be numerous complications in preparing the necessary documents.
Content of the Agreement
The terms within a Prenuptial Agreement must be legally accurate, clear to avoid multiple interpretations, and must comply with legal regulations while reflecting the intentions of both parties.
Consequently, many couples use pre-made templates from notary offices or templates downloaded from the internet without adjusting the language. This often leads to potential disputes related to the content of the Prenuptial Agreement in the future.
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Sample Prenuptial Agreement Template (2024)
Based on the Law on Marriage and Family No. 52/2014/QH13 dated June 19, 2014, we provide a standard prenuptial agreement template below for reference.
Prenuptial Agreement
Party A:
- Full name: [Name]
- Date of birth: [Date of birth]
- Identity card/citizen card number: [Number]
- Address: [Address]
Party B:
- Full name: [Name]
- Date of birth: [Date of birth]
- Identity card/citizen card number: [Number]
- Address: [Address]
We, Party A and Party B, hereby voluntarily agree to the following terms regarding the property regime during our marriage:
Article 1: Separate Property
1.1. The following assets are the separate property of Party A:
- Asset 1: [Description and value]
- Asset 2: [Description and value]
- …
1.2. The following assets are the separate property of Party B:
- Asset 1: [Description and value]
- Asset 2: [Description and value]
- …
1.3. The separate property of each party remains separate during the marriage unless otherwise agreed in writing by both parties.
Article 2: Joint Property
2.1. The following assets are the joint property of Party A and Party B:
- Asset 1: [Description and value]
- Asset 2: [Description and value]
- …
2.2. Any assets acquired during the marriage are considered joint property unless otherwise agreed in writing by both parties.
Article 3: Management and Use of Joint Property
3.1. Both parties have equal rights and obligations in managing and using the joint property. 3.2. Transactions involving joint property must be agreed upon by both parties.
Article 4: Division of Property Upon Divorce
4.1. In the event of a divorce, the joint property will be divided equally between Party A and Party B. 4.2. Each party retains their separate property.
Article 5: Amendments and Additions
5.1. Any amendments or additions to this agreement must be made in writing and notarized to be valid.
Article 6: Miscellaneous Provisions
6.1. This agreement is made in two copies, each party keeps one copy. 6.2. This agreement takes effect from the date of notarization.
Signatures:
Party A: [Signature]
Party B: [Signature]
Notarization:
Date: [Date]
Notary: [Notary’s name and signature]
*Please note that this is a sample for reference only and may not be applicable to all situations. If you need assistance with your specific case, please contact us for advice. If the link is not working, please inform us, and we will send it to you again.
Frequently Asked Questions (FAQs) About Prenuptial Agreements
A prenuptial agreement is useful for protecting the assets of each party, especially if either partner has significant assets, previous marriages, or children from previous relationships. It can help prevent disputes and ensure that each party’s rights are clearly defined.
A prenuptial agreement should be drafted before the marriage registration takes place. It must be finalized and signed prior to the issuance date of the marriage certificate to ensure it is legally binding.
The agreement must be in writing and typically requires notarization or certification to be legally effective. This process ensures the document is recognized and enforceable under the law.
Yes, a prenuptial agreement can be modified or amended if both parties agree to the changes. It is important to document any amendments properly and ensure they are legally executed.
Without a prenuptial agreement, the division of assets and liabilities in case of divorce will follow the default legal provisions. This may not align with the couple’s preferences and could lead to disputes.
Conclusion
A prenuptial agreement is a crucial tool for couples to protect their interests and minimize asset disputes. It is essential to draft the agreement in accordance with legal requirements to ensure its validity. Couples should thoroughly research and seek legal advice before creating this document.
Disclaimer: The contents of this article are for informational purposes only and may not apply to all situations. For assistance related to your specific issues, please contact us for support from our team of legal experts.
This article was first published on August 5, 2024, and last updated on August 5, 2024.
Author: Tony Nguyễn
Category: Marriage & Family
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