In some Western countries, especially the United States and Europe, it is common for men and women to choose to sign prenuptial property agreements before marriage. Both parties include requirements related to property, obligations, and other aspects in the agreement before marriage, which can not only protect their own rights and interests on the premise of mutual recognition by both parties, but also avoid many conflicts and disputes that may arise after marriage. In China, prenuptial property agreements are far from universal, but with the development and progress of society, more and more people are considering actively signing a property agreement before marriage. In life, if a couple's relationship breaks down and they have not signed a marital property agreement, it is often difficult for both parties to reach an agreement on the division of their common property through consultation at that time, leading to the need to bring a lawsuit to court and bring it to court. After a divorce lawsuit goes through the first instance process, one or both parties are dissatisfied with the division of property, and then appeal. After the second instance, the party who is not satisfied with the division of property may even apply for a retrial. Only after a lengthy and tortuous litigation process can both parties ultimately make the property relationship clearly determined, which is too costly. Currently, in order to make marriage more pure and free, more and more ordinary people (especially those living in tier 1 and tier 2 large cities), except for wealthy and celebrities, are actively choosing to sign property agreements before marriage to avoid the troubles caused by marital property entanglement in the event of a future breakdown of the relationship between the two parties. In judicial practice, once the marriage ends, a divorce lawsuit occurs. Within the current legal framework, a legal and effective marital property agreement often becomes the main basis for the court to divide the property of both parties. Therefore, how to sign a legal and effective marital property agreement has become increasingly important. The following article will discuss the issue of marital property agreements in the mainland, starting with the recent hot issue of the divorce between Da S and Wang Xiaofei and the flash marriage between Da S and Ju Junye.

1、 Media reports on big S flash divorces and marriages

When Big S (Xu Xiyuan) and Wang Xiaofei registered for marriage at the Civil Affairs Bureau of Chaoyang District, Beijing, in October 2010, it was a hot spot. At that time, Wang Xiaofei was also known as one of the "four young people in the capital". From their acquaintance to their marriage, the two met for a total of five times in just over 40 days, much like the plot of an idol drama. However, in November 2021, when the two sides had worked together for 10 years and had a son and a daughter, the media suddenly reported that Big S had filed a divorce lawsuit with Wang Xiaofei in a Taiwan court. One of the hot issues in divorce is the division of shared property between the two parties. According to media reports, the main assets of both sides at that time included a luxury house worth NT $600 million under the name of Da S and a "S Hotel" worth NT $350 million under the name of Wang Xiaofei, with a total of NT $950 million in assets. There are two luxury houses under the name of Da S, one purchased before marriage with a market value of about NT $200 million, and the other purchased after marriage with a market value of about NT $400 million. Da S once stated that the luxury house was purchased by Wang Xiaofei but registered in her name. Another important property is the "S Hotel", named after Big S, opened by Wang Xiaofei in Taiwan, with a capital of approximately NT $300 million. Of course, divorce also involves the upbringing of a pair of underage children born together.

The media did not disclose whether Dash and Wang Xiaofei had signed a marital property agreement before and during their marriage. However, since Dash voluntarily chose to file a lawsuit for divorce with the court, the author speculates that there is a greater possibility that the two parties have not signed a marital property agreement. On November 22, 2021, Das and Wang Xiaofei officially announced their divorce. Both parties chose to issue a statement through their lawyers to announce that they had peacefully dissolved their marriage.

From the statement, it can be seen that Lai Fangyu, a lawyer hired by Da S, is a well-known marriage lawyer in Taiwan. The specific property distribution plan finally reached by the two parties has not been disclosed, but the author speculates that Wang Xiaofei made concessions to the division of the couple's common property before facilitating mediation and finally peacefully resolving the dispute between the two parties (the divided property and hotel are both in Taiwan, and the two children have also been brought up by Big S in Taiwan).

It was eye-catching that the melon eating crowd had not yet emerged from the hot spot of divorce between Big S and Wang Xiaofei. The media subsequently publicly reported that Big S had registered for marriage with his former boyfriend, Korean singer Ju Junye, who had not seen him for 20 years, in South Korea on February 8, 2022. Later, on March 28, 2022, Guan Xuan completed the marriage registration in Taiwan and obtained their marriage "certificate". Although the media did not disclose whether the two parties had signed a prenuptial property agreement before the marriage registration, the author speculated that there was a greater possibility of signing a prenuptial property agreement between the two parties based on the family of the billionaire and the fact that Yu Junye, an ordinary person with little property, had already experienced a divorce. According to the author's lawyer's experience, after having in-depth contact with a divorce lawyer, if Big S marries again without signing a prenuptial property agreement with the help of a lawyer, under normal circumstances, Big S would never dare to do so.

Signing prenuptial property agreements is relatively common among celebrities. For example, some time ago, the media reported that the son of soccer star David Beckham "intruded" into marrying a wealthy daughter, and some media disclosed that the two parties had already signed a prenuptial property agreement. As an important tool for the inheritance of family wealth, marital property agreements have been widely accepted among high net worth groups. In particular, if the ultra high net worth group does not have the blessing and protection of the marriage property agreement as a sharp tool, the losses they suffer when they dissolve their marriage relationship will be enormous. In addition to the property losses, in extreme cases, they may even lead to imprisonment.
On the evening of September 12, 2016, Kunlun Wanwei announced that after receiving a notice from Zhou Yahui, the actual controller and chairman of the company, Zhou Yahui and his wife Li Qiong reached an agreement on the share split. Zhou Yahui split and transferred 207 million shares of Kunlun Wanwei directly held by him to Li Qiong's name. In addition, Zhou Yahui divided and transferred the paid-in capital of 946400 yuan held by Yingrui Century to Li Qiong's name. Yingrui Century indirectly held 200 million shares of Kunlun Wanwei. Li Qiong indirectly obtained 70.54 million shares of Kunlun Wanwei through dividing the paid-in capital of Yingrui Century, and the above shares were owned by Li Qiong from the date of transfer. Therefore, Li Qiong was directly and indirectly divided into 278 million shares of Kunlun Wanwei, which was valued at over 7 billion yuan based on the closing price of 25.33 yuan on September 12, 2016. On the evening of January 25, 2017, Mengjie Shares announced that Jiang Tianwu, the actual controller and chairman of the company, signed a divorce agreement with Ms. Wu Jing, and Jiang Tianwu divided 127 million shares of the company into Wu Jing's name. According to the stock price at that time, the market value of the split shares was about 1 billion yuan. In May 2020, Kangtai Biotechnology, a vaccine manufacturer, announced that due to the dissolution of marriage and the division of property, Du Weimin, the controlling shareholder and actual controller of the company, plans to split and transfer 161 million shares of the company (accounting for 23.99% of the total share capital) to Ms. Yuan Liping. Based on the stock price of Kangtai Biotechnology at that time, the market value of the shares in this split reached 23.5 billion yuan, and the most expensive "breakup fee" for A-shares was born. From the content of these announcements, it is clear that these wealthy couples have not signed a marital property agreement. There have also been reports in the media that wealthy individuals have been involved in criminal cases due to the conflict between divorce and property division. This is a relatively extreme situation, such as the case of Guan Yanbin, the boss of the listed company Sunflower Pharmaceutical, who killed his wife. From the cases reported above, we can see the importance and necessity of marital property agreements for high net worth groups, especially for ultra high net worth groups.

2、 What is a marital property agreement

A marriage property agreement is a written agreement reached by both parties to maintain the stability of the marriage relationship, through equal consultation before marriage or during the duration of the marriage relationship, regarding the ownership, management, use, income, disposition, debt repayment, and property liquidation at the end of the marriage relationship. From the perspective of the signing time of marital property agreements, they can be divided into prenuptial property agreements and marital property agreements. The prenuptial property agreement is signed by both men and women before marriage registration; The marital property agreement is signed during the duration of the marital relationship. However, there is no difference in essence between the two, and both belong to marital property agreements.

The relevant provisions of China's Marriage Law and Civil Code stipulate that the legal form of marital property system in China is joint ownership of marital property. However, the Marriage Law and Civil Code also grant couples the right to clarify the ownership of property through concluding marital property agreements, and grant couples the right to conclude marital property agreements that can exclude the effectiveness of the application of the legal joint ownership of marital property. Therefore, marital property agreements play an important role in dividing personal property and marital common property, as well as in the division of property when the marriage relationship is dissolved.

3、 Legal provisions

Article 19 of the Marriage Law stipulates that: "A husband and wife may agree that the property acquired during the period of marriage and premarital property shall belong to their respective owners, joint owners, or partial owners, or joint owners. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 17 and 108 of this Law shall apply. The agreement between the husband and wife on the property acquired during the period of marriage and premarital property shall be binding on both parties. The husband and wife shall have a binding force on the marriage relationship "If the property acquired during the period of existence is agreed to belong to each other, and a third party knows of the agreement, the debt owed by the husband or wife to the other party shall be paid off with the property owned by the husband or wife."

Article 1065 of the Civil Code stipulates: "Both men and women may agree that the property acquired during the period of marriage and premarital property shall be owned by each other, jointly owned, or partially owned or partially jointly owned. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply.".
The agreement between a husband and wife on the property acquired during the duration of their marriage relationship and the premarital property shall be legally binding on both parties.
"The property acquired by the husband and wife during the duration of their marriage relationship is agreed to be owned by each other. If the other party is aware of the agreement, the debt incurred by the husband or wife to the outside world shall be paid off with the personal property of the husband or wife.". “

Major changes in the provisions of the two laws: Article 1065 of the Civil Code changes the subject title of Article 19 of the Marriage Law from "husband and wife" to "man and woman.". The revision of the Civil Code is the result of accumulated experience in judicial trials, and it is also more accurate and scientific. "Because the time for concluding a marital property agreement can be pre marital or post marital, it is more accurate to refer to it as a man and a woman because both parties do not have a marital relationship at this time.". Only after both men and women become husband and wife can the property agreement concluded have legal effect. According to the nature of the marital property agreement, the establishment of the marital relationship should be a special element of the establishment of the property agreement. "If a property agreement is entered into between a man and a woman before marriage, but is not subsequently married, the property agreement shall not have effect.".

4、 Nature of marital property agreement

The marital property agreement is a contract subordinate to the marital relationship, but it is an independent contract. The marital property agreement takes the property relationship between the husband and wife as the main content, so it still belongs to the property agreement in essence. Although marital property agreements are based on marital status, their emphasis is more on property relationships. Therefore, on the issue of marital property, if there are special provisions in the Marriage and Family Chapter of the Civil Code, they should be applied first. If there are no provisions in the Marriage and Family Chapter of the Civil Code, the provisions in the Contract Chapter of the Civil Code should be applied by reference.
The content of a marital property agreement is often not limited to the marital property relationship, but sometimes also includes personal relationships. For other non property matters in the marital property agreement, agreements between the parties cannot exclude legal obligations, such as the obligation to support the elderly, nor can they violate legal provisions, such as limiting the right to remarry after divorce.

The content of the marital property agreement can be summarized as follows: "Two types of property and three models", two types of property, namely, the premarital property of both spouses and the property acquired during the duration of the marriage relationship; Three modes, namely, separate ownership, common ownership, and partial common ownership. "A marital property agreement does not include a situation where all property owned by one party is agreed to be owned by the other party, and an agreement that all property owned by one party is agreed to be owned by the other party is a gift between the husband and the wife.".

5、 The Necessary Conditions for Marriage Property Agreement to Take Effect

The author summarizes online cases by searching the judgment documents of the Supreme People's Court and concludes that the court has a high proportion of cases involving marital property agreements that have been determined to be invalid. The main reasons for determining invalidity are: (1) The conditions attached to the agreement are not fulfilled and are invalid; (2) An agreement to dispose of another person's property becomes invalid; (3) The agreement is invalid due to incomplete or missing originals; (4) The agreement is invalid due to unclear content; (5) The agreement is invalid without signature; (6) Invalid due to non marriage or nullity of marriage; (7) The agreement is invalid without a written document; (8) Invalidation due to violation of the provisions on freedom of marriage; (9) Invalid for other reasons. How to avoid the invalidity of the marital property agreement signed by both parties, both parties must pay attention to the following seven aspects:

1. The actor has corresponding civil capacity

The legal age of marriage (22 years for men and 20 years for women) specified in Article 1047 of the Civil Code is higher than the minimum age for persons with full civil capacity specified in Article 18. However, the determination of capacity is an act of judicial determination and is exercised by the people's court. In real life, it often occurs that after marriage, one spouse is identified as a person with no or limited civil capacity. Therefore, when one spouse becomes incapacitated, the marital property agreement signed by both parties will generally be deemed invalid.
2. The husband and wife have a legal and effective marriage relationship

"A marital property agreement is an agreement between a husband and wife that is subordinate to a marital status relationship. It takes effect from the time the marriage is validly established. When the marriage is not established, invalid, or revoked, the marital property agreement does not take effect or is invalid.".

3. The meaning of both spouses is true

The Civil Code devotes a large amount of space to describing various types of untrue expressions of will. From this, it can be seen that the authenticity of the expression of will is important for the validity of the agreement. Once the parties' untrue expressions of will, the agreement is invalid or voidable. The untrue expression of intention in a marriage property agreement often manifests itself in situations where the true intention is violated due to significant misunderstanding, fraud, or coercion.

4. Agreed disposition of property without infringing upon the rights and interests of others

"A husband and wife can make an agreement on their respective pre marital or post marital property, but they cannot dispose of others' property in a marital property agreement that infringes upon the legitimate rights and interests of others. Otherwise, the agreement is invalid or has an undetermined effect.".

5. Not violating laws and regulations, public order and good customs

The starting point for concluding a marriage property agreement should comply with the principles of marriage and family ethics and good customs, and should not violate mandatory legal provisions. In order to maintain the stability of the marital relationship, some couples tend to include similar provisions in marital property agreements, such as restricting divorce or "infidelity and purity", which may be invalid due to violations of legal provisions on freedom of marriage, public order, and good customs.

6. Agreed in writing

Article 1065 of the Civil Code stipulates that marital property agreements should be in writing. The legal requirement for concluding a marriage property agreement in written form is that the agreement is clear and well documented when disputes arise between the two parties. If the agreement is made orally and a dispute arises afterwards, it cannot be handled according to the marital property agreement.

7. The husband and wife shall not act in person

Due to the particularity of the subject of the marriage property agreement and the non consideration of the agreement content, outsiders often do not know the content of the couple's family life and cannot participate in the negotiation of the terms of the marriage property agreement on behalf of one party. Therefore, it is required that the marriage property agreement must be signed by both parties in person, not by an agent

6、 Form of marital property agreement

Marriage property agreements signed by men, women, or couples can take the form of notarization, witness by a lawyer, or private signing. Of course, the effectiveness of a marriage property agreement is not conditional on notarization or witness by a lawyer. However, compared to property agreements that have not been notarized or have not been certified by lawyers, notaries and lawyers will conduct clearer investigation and verification of property during notarization and witness, and will verify more carefully whether both parties are willing and have civil capacity, and will retain relevant evidence. The probability of such marital property agreements being determined to be invalid is greatly reduced. Therefore, the author suggests that when choosing to sign a marriage property agreement, the parties still prefer notarization, followed by the form of lawyer witness.

7、 Who should sign a prenuptial property agreement more

1. For first married high net worth couples, as the "post 80s" and "post 90s" generation of only children has become the mainstream subject of marriage, especially in the era of high housing prices, some "post 80s" and "post 90s" may already have certain assets under the gift of their parents before marriage, so before marriage, the source of property should be clarified, and the attribution agreement should be clear after the problem occurs, It's not even a claim between two married men and women, it's also a need for two families. Therefore, for first married men and women who already have high net worth property before marriage, prenuptial property agreements are almost inevitable. Otherwise, if parents use their lifetime savings to purchase real estate for their children, their desire to inherit family wealth will be difficult to achieve when their children's marriage fails.

2. For remarried couples: This type of person may have experienced problems and troubles caused by unclear property division and unclear agreements during marriage, and even some people have experienced the torment of divorce litigation. Therefore, they are more aware of the need to clarify things before problems arise. The proportion of these people choosing prenuptial property agreements is very high. As mentioned in this article, when Da S and You Junye flash marriage, it should be considered to make an agreement on pre marital property and property during marriage. After all, whether before or after marriage, the pre marital property status and post marital earning ability of Da S and You Junye are not at the same level. "I also have friends around me who do not understand the effectiveness of marital property agreements and did not sign property agreements during remarriage, resulting in confusion between their premarital property and their property during remarriage. It is not uncommon for secondary marriages to experience crises due to property issues.".

3. For the "sunset love" remarriage group, because they are older at the time of remarriage, they need to consider more issues, such as support issues, inheritance issues, and the attitude of both parties' children. Therefore, these people should overcome the "fear of trouble" attitude and sign a prenuptial property agreement.

8、 The difference between Hong Kong's judicial practice on prenuptial property agreements and mainland China's

Currently, there is no absolute recognition of prenuptial property agreements in Hong Kong, and courts generally reserve their discretion to decide whether to recognize prenuptial property agreements based on whether the specific circumstances of the case are fair and reasonable. Among them, whether the two parties have pressure when signing the property agreement, whether each party has an independent lawyer representative, and whether appropriate property disclosure is conducted are the circumstances considered by the court. In addition, the duration of the marriage is also an important factor for the court to consider. If both parties end up divorce within two to three years after signing the prenuptial property agreement, in the court's view, the marital relationship is still relatively unfamiliar. Considering the small changes in the period, the probability of dividing the property according to the prenuptial property agreement will be high. In contrast, if a marriage lasts for more than 10-15 years, the likelihood of dividing property entirely according to a prenuptial property agreement is greatly reduced.

In addition, there is a significant difference in the application of laws between Hong Kong and the mainland: the relevant laws in the mainland stipulate that if the property is purchased in full by the parents of the child before marriage and given to the child, the property right is registered in the name of the child. During a divorce, it is generally impossible for the property donated by parents to be distributed by their spouses. However, the laws of Hong Kong are different from those of the mainland. The court will consider these properties to be owned by one party before marriage, but used jointly by both parties after marriage as a marital residence. According to the time limit, the property donated by one party before marriage will also be considered as the common assets of both parties. This is the result of the Hong Kong courts' tendency to ensure that both parties have their places of residence.

Therefore, in recent years, more and more people, especially high net worth individuals, have chosen to pursue divorce lawsuits in Hong Kong. Because even if both men and women marry in the mainland, according to Hong Kong law, if one of them has significant connections in Hong Kong, such as having lived for two to three years, or has significant assets in Hong Kong, such as owning a listed company in Hong Kong, which accounts for the majority of the family's overall wealth, Hong Kong has jurisdiction to handle such divorce proceedings. Therefore, when a divorce dispute occurs, if such cases meet the conditions for divorce proceedings in both places, the beneficial party that handles the dispute according to the prenuptial property agreement should actively choose to go to the mainland to file a lawsuit, while the other party usually actively chooses to file a lawsuit in Hong Kong. In addition, judging from the publicly reported handling results of divorce cases in Hong Kong, it is difficult to fully protect the property inheritance issues of high net worth individuals through simple prenuptial property agreements. They should also consider comprehensively the issue of family wealth inheritance by combining insurance and family trust.

9、 The Dilemma and Message of Premarital Property Agreement

Although marital property agreements include prenuptial property agreements and marital property agreements, the parties mostly choose to sign them before marriage, and the proportion of couples choosing to sign property agreements during the duration of the marriage relationship is relatively low. Although signing a marriage property agreement can play a role in settling disputes, it is also a touchstone, and its "power" has led many couples to choose to break up before marriage. When one party proposes to sign a prenuptial property agreement with the other party before marriage, stipulating that the prenuptial property should be owned by each other, or when the property acquired during marriage should also be owned by each other, few couples can pass this hurdle. Whether to choose to believe in love or to make a clear agreement on property before marriage, both men and women and their families should be cautious.

The 40 years of reform and opening up have greatly increased the wealth of Chinese people, coupled with the awakening of self consciousness and the liberation of personality, and the inevitable trend in the future is that people will have a more open attitude towards marriage. As the basic unit of society, the harmony of marriage affects the stability of the family and the peace of society. The author believes that a harmonious marriage is not only limited to stability without divorce, but also to a more inclusive attitude towards marriage. When men and women come together because of love, a marriage that can smoothly and peacefully break up even if they do not love is a harmonious marriage, and a marriage property agreement is an important tool to ensure the smooth and peaceful separation of a husband and wife who do not love! If a couple with a broken relationship still has children, and the couple chooses to break up peacefully, it will minimize the harm of divorce to their children! As mentioned at the beginning of the article, the peaceful separation between Da S and Wang Xiaofei and the resolution of the dispute over their decision to jointly raise their children are undoubtedly extremely beneficial to the growth of their two minor children. Therefore, in modern marriage, the importance of marital property agreements is becoming increasingly prominent!