By Elena Giannattasio, International Family Lawyer (New York & San Francisco), Multi-Jurisdictional Divorce, PLLC
Prenuptial agreements can be exceptionally valuable for internationally mobile couples living in Hong Kong, but their usefulness depends entirely on drafting that reflects a deep understanding of cross-border family law. Agreements should be crafted by counsel with extensive international experience, because Hong Kong’s treatment of both prenuptial and postnuptial agreements remains complex, highly discretionary, and driven by evolving jurisprudence (especially after the handover to China).
Unlike many jurisdictions, nuptial agreements are not included in the statutory list of factors that Hong Kong courts must consider under the Matrimonial Proceedings and Property Ordinance when determining financial outcomes in a divorce. Instead, both prenuptial and postnuptial agreements are evaluated under the broad, subjective, and often unpredictable standard of “fairness.”
Historically, at common law, nuptial agreements were considered contrary to public policy because they were seen as attempts to oust the court’s jurisdiction to grant ancillary relief. Modern law began shifting with the Judicial Committee of the Privy Council’s 2008 decision in MacLeod v. MacLeod, [2008] UKPC 64. In that case, the court upheld the validity and enforceability of a postnuptial agreement while affirming that courts retained authority to modify such agreements whenever necessary to protect the financially weaker spouse.
The legal landscape developed further with the landmark 2011 decision in Radmacher v. Granatino, [2010] UKSC 42, [2011] 1 A.C. 534, where the U.K. Supreme Court extended the MacLeod principles to prenuptial agreements. The court held that these agreements could carry “decisive weight,” but only if their terms were fair. Even a carefully negotiated, fully informed agreement would still be reviewed on a case-by-case basis through the overarching fairness lens.
Hong Kong formally adopted this approach in 2014. In SPH v. SA [2014] HKCFA 56, the Hong Kong Court of Final Appeal confirmed that Radmacher now reflects Hong Kong law, applicable to both prenups and postnups. The case involved the effect of a German prenuptial agreement between German nationals and addressed the husband’s request to stay Hong Kong divorce proceedings on forum non conveniens grounds. The court held that both the German prenuptial agreement and a German separation agreement were relevant considerations. However, the judgment did not articulate how the fairness standard should be applied in practice.
The uncertainty of this fairness test makes it extremely difficult to predict how a Hong Kong court will treat a prenuptial or postnuptial agreement. The 2019 case LCYP v. JEK, [2019] HKCFI 1588, demonstrates this dramatically. The court acknowledged the validity of a New Jersey prenuptial agreement, executed after full negotiation, independent representation for both spouses, and complete financial disclosure, yet held that the agreement had become “unfair” because the husband’s financial circumstances had significantly improved during the marriage. As a result, the court ordered a financial award designed to maintain the wife at a highly affluent standard for life, effectively overriding the agreement.
This outcome starkly contrasts with how the same prenuptial agreement would have been treated in New Jersey, highlighting the enormous impact of forum selection in international divorce. Strategic forum analysis, often long before separation occurs, can fundamentally determine the financial outcome of a case.
Our Global Practice Perspective
From New York and San Francisco, international family lawyer Elena Giannattasio routinely works with families requiring advanced forum analysis and collaborates with leading local counsel in Hong Kong and other jurisdictions as appropriate.
Foreign Law Disclaimer, Multi-Jurisdictional Divorce, PLLC
This overview concerns foreign law. Elena Giannattasio, Esq. is not admitted to practice in Hong Kong and does not advise on Honk Kong Law. All information is provided strictly for general educational purposes and is not legal advice.