Prenups and postnups – a (love) letter from America…and from England, Hong Kong, and Singapore

I have no problem in linking romance with preparation and practicalities when it comes to a successful partnership. With Valentines' Day being celebrated recently, many of my clients who are preparing for the big day will have celebrated I hope, but they will also have invested valuable time and energy into thinking about what the future might look like if things don’t quite go to plan.

Prenuptial and postnuptial agreements, often referred to as 'prenups' and 'postnups' are contracts entered into by couples before or after their marriage. These agreements typically outline the distribution of assets, financial responsibilities, and in some countries, they can deal with other related matters in the event of a divorce or separation, They are no longer the preserve of the rich. But, importantly for many international families, the legal recognition and enforceability of such agreements vary significantly across different jurisdictions. Fortunately, we have the privileged position of having a hot line to Withers colleagues in London, Hong Kong, Singapore, New York, and California, meaning we can give joined up advice covering multiple jurisdictions. 

So what's the law relating to prenups in England, Hong Kong, Singapore, California and New York…?

In England and Wales, prenuptial and postnuptial agreements are not legally binding, but they are increasingly being given significant weight by the courts. The landmark case of Radmacher v. Granatino in 2010 established that such agreements should be upheld if they are freely entered into by both parties with a full appreciation of their implications, unless it would be unfair to do so. The courts will consider factors such as the parties' financial needs, the welfare of any children, and whether each party had independent legal advice when determining the fairness of the agreement. That means that they can be used to protect assets brought into the marriage and acquired along the way, which are not to be treated as joint (marital) assets of the sort which would usually be shared equally on divorce. The recent case of Helliwell v Entwistle [2024] EWHC 740, illustrates how critical this can be. There, the couple signed a prenup on the day of their marriage which included an English jurisdiction clause and set down that each would keep their separate property, they would split their jointly owned property and neither would bring a claim in any other jurisdiction, should they decide to divorce. Sadly the marriage ended after three years by which time the wife's assets were in the region of £70m and the husband's assets were under £1m. A letter from the wife's Dubai solicitors which threatened divorce proceedings in Dubai could have been detrimental to the prenup, but ultimately it was upheld by the English court which found the husband to have entered the agreement 'with this eyes wide open' and he received the sum of £400,000 rather than the £10m he sought. 

In Hong Kong, prenuptial and postnuptial agreements are also not automatically enforceable. In fact, up until about 10 years ago they were considered somewhat bad luck. But attitudes are shifting, not just for newlyweds, but for older generations. The general rule for asset division for a long marriage in Hong Kong is 50/50. However, the court may take these agreements into account when making financial orders upon divorce, provided they meet certain criteria. Again, the agreement must be entered into voluntarily, with full disclosure of financial information and without undue influence or pressure. Additionally, the agreement must be fair and reasonable at the time of its enforcement, considering the parties' circumstances and the welfare of any children. 

Singaporean law on prenuptial and postnuptial agreements is similar to that of Hong Kong and they are increasingly seen as less of a 'taboo' subject. Unlike in many other jurisdictions, there is no starting point for equality of division for matrimonial assets so prenups and postnups can give a level of certainty. Again, these agreements are not legally binding, but they will be considered by the courts when deciding on the division of matrimonial assets and financial support upon divorce. The court will evaluate whether the agreement was made voluntarily, with a full understanding of its implications and without coercion. The agreement must also be fair and just, taking into account the needs of the parties. 

In New York, prenuptial and postnuptial agreements are legally binding, provided they meet certain requirements, some of which are very particular and technical. The agreements must be in writing and executed and acknowledged in the same manner and with the same formalities as a deed (generally speaking, signed and acknowledged before a notary public).  This is a particularly strict requirement and agreements that would have otherwise been valid and binding have been found to be null and void if this requirement is not met. Both parties must have entered into the agreement freely and with sufficient disclosure of their financial circumstances (or, at a minimum, an acknowledgement that they are aware of the entitlement to disclosure and are satisfied with the level and amount of information received). The courts favour upholding and enforcing agreements as a general matter, as there is a strong public policy interest in affirming the right and ability of individuals to enter into valid and binding agreements.  However, certain provisions of agreements can be set aside if particular technical requirements are not met, or entire agreements can be set aside altogether if they are found to be unconscionable, or the result of overreaching, duress, or fraud. 

California is a community of property state.  There is a legal presumption that all income, assets and debts acquired during marriage are community property and subject to equal division upon divorce. This can pose difficulties for families with complex financial interests, especially for clients with multi-generational family wealth, involvement and/or ownership expectancies in a family business, and with ownership interests in closely held businesses. Prenuptial agreements and postnuptial agreements allow couples to opt-out of California law (partially or completely).  They can also provide couples with certainty and, hopefully, confidence that in the event their marriage does not work there will not be prolonged (and often times very expensive) litigation.  While there is no such thing as an iron clad prenuptial or postnuptial agreement, California's legal system typically recognizes these types of agreements when certain conditions are met.  The agreements must be accompanied by full financial disclosures by both parties, they should be in writing, signed by both parties, and both parties should be represented by independent counsel during the negotiation process.  Additionally, the law imposes a “cooling off” period which requires both parties to confirm the agreement is final seven days before it can be executed.   The popularity of premarital and postmarital agreement has increased with modern and sophisticated couples. The same way a couple with significant wealth would do well to create an estate plan memorializing their wishes for their assets, a couple with significant assets should do the same. Marital agreements often get a bad rep but it is time to look beyond this taboo, and consider the practical needs for such an agreement as a way to manage your wealth and put together a plan for efficiently decoupling with your spouse in the event of divorce.  

While the enforceability and recognition of prenuptial and postnuptial agreements vary across jurisdictions, they share a common thread with the emphasis on the need for the terms to be fair, for the couple to enter voluntarily and for the need for sufficient financial disclosure. And in England and Wales, Hong Kong, and Singapore there is significant judicial discretion in assessing the fairness of these agreements, whereas New York and California offer more robust legal frameworks for their enforcement, provided strict statutory requirements are met. 

We may have different laws and systems, but we share the same aim and that's to help all of our clients to lay strong and clear foundations for their marriage, planning for the highs and protecting and futureproofing for any lows. And at a time when international relations can be said to be under certain strain, having conversations about important, if tricky subjects about how to go about the most important and hopefully long-term partnership of marriage, are more important for clients at home and abroad, than ever.

For more information on prenups, see our FAQ page here.