HOW TO ESTABLISH A PRENUPTIAL AGREEMENT?

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1. What is a Prenuptial agreement?
2. Legal basis for establishing a Prenuptial property agreement
3. Conditions for the validity of a Prenuptial agreement
4. Content of the Prenuptial property agreement
5. Notarization procedure for a Prenuptial property agreement
6. Latest Prenuptial property agreement form
7. In what cases is a Prenuptial agreement invalid?
8. FAQ

In the era of international integration, marriages between Vietnamese and foreigner are becoming increasingly common. However, differences in culture, law, and property can lead to complex disputes in the future. To protect the legitimate rights and interests of both parties, establishing a prenuptial agreement is an optimal solution. This article will provide detailed guidance on the content, procedures, and other issues related to establishing a prenuptial agreement between Vietnamese and foreigner.

1. What is a Prenuptial agreement?

Currently, the Vietnamese legal system does not have specific regulations regarding the concept of prenuptial agreements. The Law on Marriage and Family only provides some provisions but not comprehensively about the right to choose an asset regime by agreement between spouses (Article 28.1 of the Law on Marriage and Family 2014).

A prenuptial agreement can be understood as a written agreement that a couple intending to marry signs before the wedding. The primary purpose of this agreement is to determine how financial and property issues of both parties will be resolved throughout the marriage.

From a positive perspective, prenuptial agreements help the parties feel more secure when living together and minimize long-term legal risks.

2. Legal basis for establishing a Prenuptial property agreement

According to Article 47 of the Law on Marriage and Family 2014, the conditions for spouses to choose and apply a prenuptial agreement include:

Firstly, regarding time, this agreement must be made before marriage. This regulation is also applied in many countries that have a marital property regime based on agreements.
Secondly, the agreement takes effect from the date of marriage registration. In other words, marriage registration is a mandatory condition if the parties want to choose this regime. Cases of illegal marriages or registrations at unauthorized agencies, in principle, cannot apply prenuptial agreements, even if a written agreement was established beforehand.
Thirdly, the agreement must be made in writing and notarized or authenticated. The process and procedure for signing a prenuptial agreement are carried out according to the Law on Notarization 2014 and the regulations of the competent state agencies.

3. Conditions for the validity of a Prenuptial agreement

For a prenuptial agreement to be valid, it must comply with the conditions for the validity of civil transactions as follows:

Subject entering into the agreement: The subject must have appropriate civil legal capacity and conduct. They are only individuals, not legal entities. The status of the subject is based on civil act capacity as stipulated by the Civil Code 2015.

Voluntary entry: The transaction is entirely based on the voluntary will of the participating parties. To determine voluntariness, it is necessary to consider many factors, especially in the event of a dispute. Factors that determine non-voluntariness include: pretense, confusion, deception, threats, and coercion.

Purpose and content do not violate the law and ethics: The content of the agreement must not seriously violate the rights to maintenance, inheritance, and other legal rights and interests of parents, children, and other family members; it must not violate legal regulations and ethics. Whether there is a violation is determined based on various laws, following the principle "Parties have the right to agree on what the law does not prohibit."

Compliance with civil principles: The content of the prenuptial agreement must comply with the basic principles of civil law and the conditions for the validity of civil transactions as stipulated by the Civil Code 2015.

4. Content of the Prenuptial property agreement

According to Vietnamese law, parties are allowed to freely negotiate the content of contracts in general and prenuptial agreements in particular, based on legal principles. This flexibility depends on mutual consent between the two parties. Prenuptial agreements typically include the following main contents:

Provisions on defining joint and separate property

This content is essential as it determines the rights of spouses over specific types of property, serving as the basis for property division after terminating the agreed property regime. The guidelines for defining joint and separate property of spouses are detailed in Article 15 of Decree No. 126/2014/ND-CP. Specifically, spouses may agree on property classification based on the following contents:

Matrimonial property includes joint property and separate property of husband and wife;
Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is joint property;
Husband and wife have no joint property and all property a spouse has before marriage and during the marriage period is separate property of that spouse; or

Thus, the parties are free to agree on any method of determining joint property and separate property, provided that the agreement does not violate the law and social customs. In cases where issues arise that have not been agreed upon by the spouses or the agreement is unclear, these issues will be applied similarly to the legal property regime.

Provisions on the rights and obligations of spouses regarding joint property, separate property, and related transactions; property to ensure essential family needs:

The parties are free to agree, however, the content of the agreement must comply with the law and ensure the fulfillment of the obligations and responsibilities of the spouses.
Spouses have the obligation to ensure conditions to meet the essential needs of the family (Essential needs are understood as ordinary living needs for food, clothing, housing, education, medical examination, treatment, and other ordinary living needs that are indispensable for the life of each person and each family). If a prenuptial property agreement violates this content, it may be declared invalid. Therefore, the parties need to agree to ensure the essential needs of family members, especially in cases where the parties agree to have only separate property and no joint property.
When spouses agree on the determination of rights and obligations regarding property, property relations with related third parties must be based on and implemented according to that agreement. When establishing and executing property transactions with third parties, spouses have the obligation to provide these parties with relevant information about the property; if spouses violate this obligation, the third party is considered bona fide and their rights are protected in accordance with the provisions of the Civil Code.

5. Notarization procedure for a Prenuptial property agreement

Step 1: Prepare the dossier

To confirm separate property in marriage, spouses need to prepare a dossier including the following documents:

A written confirmation of the separate property of the spouses with the full signatures of both people. This document can be drafted by the spouses themselves or requested by a notary at the notary office.
A notarization request form with complete information of the notary, notarization content, and list of related documents.
Copies of the spouses' personal identification documents (ID card, citizen identification card, passport).
A single status certificate of each party.
Copies of the certificate of land use rights, property ownership rights to be confirmed as separate property.
Other documents related to the confirmation.

The person requesting notarization prepares a complete dossier and submits it to a notary office or authentics it at a competent commune-level People's Committee.

Step 2: Review the dossier

After receiving the dossier, the notary will review it and provide feedback to the requester regarding the receipt result:

If the dossier is incomplete or invalid: request amendments or supplements. In the specific case where amendments or supplements are requested but the notarization requester does not comply, the notary may refuse to accept the dossier.
If the dossier is valid: Accept the dossier and begin processing.

For the accepted dossier, the notary will provide guidance on the regulations of the notarization procedure, rights and obligations, meaning, and legal consequences when the spouses establish a separate property agreement document.

Next, the notary will draft or appraise the draft document confirming the separate property of the spouses. If there are any errors, the notarization requester will be asked to make corrections to make it valid. After that, the notary will transfer the document to the notarization requester to review and reconfirm the document content.

Step 3: Signing the agreement document confirming separate property in marriage

If they agree with the content of the agreement document confirming separate property, the spouses will sign or fingerprint each page of the agreement document. This must be done at the notary office or under the notary's witness.

Step 4: Paying fees and receiving the notarization result

After signing, the notarization requester will pay the notarization fee and receive the agreement document confirming separate property in marriage with the notary office's seal.

6. Latest Prenuptial property agreement form

Download here: Form

7. In what cases is a Prenuptial agreement invalid?

A prenuptial agreement shall be declared invalid by the Court in any of the following cases:

Violating the fundamental principles of law:

The agreement seriously violates the right to alimony, the right to inheritance, and other legitimate rights and interests of parents, children, and other family members;
The agreement is contrary to social ethics, violating the prohibitions of the law;
The agreement aims to conceal or transfer illegal property;
The agreement aims to infringe upon the legitimate rights and interests of others.

Violating one of the following provisions:

General principles of the marital property regime (Article 29 of the Law on Marriage and Family);
Rights and obligations of spouses in meeting the essential needs of the family (Article 30 of the Law on Marriage and Family);
Transactions related to the house that is the sole residence of the spouses (Article 31 of the Law on Marriage and Family);
Transactions with third parties in good faith related to bank accounts, securities accounts, and other movable property that, according to the law, are not required to be registered for ownership or use rights (Article 32 of the Law on Marriage and Family).

Violating the conditions of the parties' capacity to act:

One or both parties do not have full civil act capacity as prescribed by law;
One or both parties have lost their civil act capacity due to mental illness or other reasons;
One or both parties have limited civil act capacity.

The agreement is made under coercion, threat, or fraud;
The agreement is forged or illegally modified:

The agreement is forged by another person's signature or fingerprint of one or both parties;
The agreement is illegally modified without the consent of both parties.