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Why a prenup could improve your marriage and even be romantic – an important gift each partner can give to the other

South China Morning Post logo South China Morning Post 19/9/2020 Luisa Tam luisa.tam@scmp.com
a man and a woman sitting at a table: Critics of prenuptial agreements say they put unnecessary pressure on marriages, but others believe they are a practical requirement. Photo: Shutterstock Critics of prenuptial agreements say they put unnecessary pressure on marriages, but others believe they are a practical requirement. Photo: Shutterstock

Some critics say a prenuptial agreement is bad for marital health because it puts undue emphasis on protecting assets and personal interests.

Others view prenups as a practicality. It is essentially a contract that sets out what a couple wants to include and exclude in their financial arrangements while they're together and in the event of them splitting up.

"Without such a document, you're putting your lives in the hands of the court, where the starting point can be equal division of all assets, however and whenever acquired, as well as ongoing monthly financial support," says Sharon Ser, Hong Kong managing partner of Withers and a family law specialist.

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"The prenuptial agreement allows you to put your destiny in your own hands by deciding how you'd want things settled if anything goes wrong in the marriage."

a person posing for the camera: A good prenup can demonstrate your willingness to hear your partner, and acknowledge their fears and concerns. Illustration: Brian Wang © Provided by South China Morning Post A good prenup can demonstrate your willingness to hear your partner, and acknowledge their fears and concerns. Illustration: Brian Wang

I know of a couple who have been married for more than 10 years with two young children, but they haven't been happy with the marriage for a few years.

Although the wife has a good job, she is reluctant to leave her husband because she is too used to the comfortable lifestyle provided by him.

After they had a huge argument two years ago, the husband questioned her commitment to the marriage and threatened to take her name off as a co-owner of the luxury property he bought. She is also worried that she will not be able to get a divorce due to financial uncertainty.

What you need to know before signing a Hong Kong prenuptial agreement

More often than not, many find it too awkward to suggest setting aside a prenup and choose to invest faith in their marriage without any safety net.

Others view prenups as a contractual arrangement without seeing their real value. Prenups should be viewed as a means of safeguarding the best interests of both parties, especially when there are children involved.

a person in a wedding dress: Prenups should be viewed as a means of safeguarding the best interests of both parties involved. Photo: Shutterstock © Provided by South China Morning Post Prenups should be viewed as a means of safeguarding the best interests of both parties involved. Photo: Shutterstock

"I tell those who are embarrassed about asking their fiancee or fiance to sign a prenup that they have to remember they are on the threshold of building a lifelong relationship together and so they have to have discussed all possible scenarios concerning life together before actually marrying," Ser says.

One big advantage of a prenup is that a couple must learn to communicate about finances before they're in too deep and married. They can define common aspirations about how they want their marriage and their finances to evolve, Ser says.

"If they love each other now, then they will want to love each other even if they separate, and the best way to keep the relationship amicable is to have a solid agreement in place," she explains.

"Then they'll be staying together for the right reasons because the financial side, which can be the very painful part of a relationship when things go wrong, is out of the way. And going forward, it's just love and commitment to their marriage that is important."

a group of people sitting at a table using a laptop computer: Couples can organise their own prenup, but a lawyer should check it over to make sure it stands up in court. Photo: Shutterstock © Provided by South China Morning Post Couples can organise their own prenup, but a lawyer should check it over to make sure it stands up in court. Photo: Shutterstock

She points out that prenups are for everyone and not, as some tend to assume, required for rich people or celebrities only.

"It means a couple have to talk about what's important to them before they marry, so they won't have a horrible shock learning about their differences after they're married," she says.

Any couple could write their own prenup, but it's better to have a lawyer check it over to make sure it will stand up in court, she adds. As to what can or cannot be included in such an agreement, Ser explains: "You can agree that only funds that go into a joint account or assets that are bought in joint names become joint assets and so are divided equally on divorce.

"You can agree that pre-existing assets in his or her own name stay insulated from any future financial claim. This is really important for people who are having their second, third or fourth marriage.

"Also, if someone has already inherited funds or property, or been gifted funds or property from their parents, then you can have an agreement that those funds are not to be shared on divorce."

a woman looking at the camera: Sharon Ser is Hong Kong managing partner of Withers and a family law specialist. Photo: Sharon Ser © Provided by South China Morning Post Sharon Ser is Hong Kong managing partner of Withers and a family law specialist. Photo: Sharon Ser

Another matter to cover is that any future inheritances due to come to either party won't be regarded as joint unless there is a deliberate intention to intermingle funds by depositing the inheritance, or some of it, into the joint bank account.

"Nothing is really out of bounds for inclusion in a prenuptial agreement, but since the issue will be one of enforceability, what you include has to be reasonable and legal."

The prenup can also cover the arrangements for the children, such as who will have them living under their roof after the divorce and who will pay for them.

To many, a prenup might sound too businesslike and unromantic, but Ser stresses that it is an important gift that each partner can give to the other.

a man and a woman looking at the camera: Nothing is really out of bounds when discussing what should be included in a prenuptial agreement. Photo: Shutterstock © Provided by South China Morning Post Nothing is really out of bounds when discussing what should be included in a prenuptial agreement. Photo: Shutterstock

"There are lots of things about getting married that require a level of practicality that is definitely not romantic, but if you manage to navigate through these predicaments prior to marrying then you can demonstrate your willingness to hear your partner, acknowledge their fears and concerns, and reach a compromise and agreement," she says.

"That's a really great basis for a future marriage and life partnership. And that in itself is romantic."

Luisa Tam is a correspondent at the Post

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This article originally appeared on the South China Morning Post (www.scmp.com), the leading news media reporting on China and Asia.

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