How to write prenuptial agreements and property agreements within marriage to have legal effect, key points of Article 1065 of the Civil Code, interpreted by Guangdong Zhiming Law Firm

Pre marital agreements and property agreements within marriage are effective as long as both parties agree voluntarily, the content is not illegal, and the form is written and signed, without the need for notarization. However, in practice, a large number of agreements are deemed invalid or partially invalid by the court, often due to issues such as exceeding the scope of the agreement, unclear expression of intent, and mixing personal and property relationships in writing. Article 1065 of the Civil Code is the core legal provision. If written correctly, it is your talisman; if written incorrectly, it is a piece of worthless paper. The marriage and family team of Guangdong Zhiming Law Firm handles hundreds of divorce disputes involving property agreements every year. Below are the key points of effectiveness.

What does Article 1065 of the Civil Code say? Remember in three sentences

Article 1065, Paragraph 1: Both men and women may agree that the property acquired during the existence of their marriage and pre marital property shall be owned separately, jointly, or partially separately or partially jointly. Clause 2: The agreement shall be in writing. Article 3: The agreement between husband and wife regarding the property acquired during the existence of the marriage relationship and the pre marital property shall be legally binding on both parties. The fourth clause is the key guarantee: the husband and wife agree that the property obtained during the existence of the marriage relationship belongs to each other. If the other party is aware of the agreement, the personal property of the husband or wife shall be used to repay the debt owed by the other party. Pay attention to the wording of the fourth paragraph. Effective confrontation only occurs when the other party is aware of it. If they are not aware, it may still be treated as a joint debt between husband and wife. In practice, many parties may think that signing an agreement means everything is fine when they first encounter it. However, in terms of external debt, the agreement is only valid within the couple and creditors are not bound.

What content is written in vain, the court directly denies it

The first type involves agreements related to personal relationships. For example, it is agreed that one party shall not file for divorce, shall not remarry after divorce, shall waive the right to visit their children, and shall not change the custody of their children. These belong to identity relationships, and the freedom of marriage and the interests of children cannot be pre disposed of through agreements, which are also invalid if written. The second category is exemption from legal custody obligations. For example, if one party agrees not to bear child support, the court will review whether it harms the interests of the children and usually does not support it. The third type is to dispose of the property of others. Writing the property under the parents' names and the equity of other shareholders in the company into the marital agreement constitutes unauthorized disposal. The fourth category is property division clauses that are conditional on divorce. If there is no agreement for divorce in the end and one party reneges in the lawsuit, according to Article 69 of the Interpretation of the Marriage and Family Code of the Civil Code, the court will determine that this provision is not effective and then divide it according to law. Many people fall into this trap, thinking that writing 'clean body and exit the household' can be enforced, but in the end, they are reassigned in court.

Written form is not just about signing, these few details determine success or failure

Both parties are required to sign in writing, preferably by fingerprinting and specifying the date of signature. If it is a printed copy, it is recommended to sign each page to avoid disputes over page changes afterwards. Handwritten agreements should have clear handwriting and not use pencils. The agreement should clearly write the identity information of both parties, names and ID number, not just the husband and wife. The property description should be specific enough to be identifiable, with the real estate certificate number and location written for the property, the bank and account number written for the deposit, and the full name and shareholding ratio of the company written for the equity. Vaguely stating that all property belongs to the female party can easily lead to disputes when encountering specific assets. Guangdong Zhiming Law Firm suggests that for agreements involving real estate, equity, and large-scale wealth management, the signing process can be recorded simultaneously or signed by two unrelated witnesses, which can significantly reduce the difficulty of evidence in subsequent litigation.

Is there a difference in effectiveness between a prenuptial agreement and a property agreement within marriage

There is no fundamental difference in legal effectiveness, and both are based on the agreed property system in Article 1065. The difference lies in the applicable scenarios. The prenuptial agreement is signed before the registration of marriage, and the effective date is generally agreed upon as the date of marriage registration. If there is no marriage in the end, the agreement does not have the effect of a spousal property agreement. The property agreement within marriage is signed during the existence of the marital relationship, and the signature is binding on both parties. In practice, we generally suggest that marital property agreements should not be written as divorce agreements, but rather as spousal property agreements in the title. The content should only deal with property ownership and should not include divorce conditions, child custody, or compensation for mental damages. Mixed together, the court may conduct a comprehensive review, mixing together the valid and invalid parts, increasing uncertainty. If you really want to arrange divorce matters at the same time, then sign a separate divorce agreement and specify that the registration of divorce is the effective condition.

Is notarization necessary and under what circumstances must it be done

Notarization is not an essential requirement for effectiveness, but there are two types of situations that are strongly recommended. One type is the agreement involving the nature of real estate gifts, such as agreeing that one party's pre marital property should be named or owned by the other party. Before the transfer registration is completed, the donor can theoretically revoke it, and notarization can block this loophole. Article 658 of the Civil Code stipulates that a notarized gift contract shall not be subject to the right of arbitrary revocation. The other type involves agreements related to company equity, which can be notarized to fix the signing time and authenticity of the signature, preventing non recognition of accounts afterwards. The Shenzhen Notary Office usually requires both parties to be present and bring their ID cards, household registration books, marriage certificates, and property certificates to handle the notarization of marital property agreements. The fees are charged in proportion to the subject matter, and the specific standards of the notary office shall prevail. An agreement that is not notarized is also valid, but when presenting evidence, the other party may deny signing. In this case, handwriting identification is necessary, which incurs significant time and cost.

External debt and third parties, parts that cannot be blocked by agreements

This is the most easily overlooked. You have agreed internally that each party owns their own property, but if one party borrows money from others and the creditor is not aware of this agreement when filing a lawsuit, they can still demand repayment with the joint property of the couple. The fourth paragraph of Article 1065 of the Civil Code clearly states that only when the counterparty is aware of the agreement, can they use their personal property to settle the debt. In practice, the court will review whether the creditor is aware, and the burden of proof lies with the party claiming exemption. So if you do implement a separate property system and one party is operating a company or has a large external debt, it is recommended to clearly inform the creditor of this agreement in the loan contract or guarantee contract, or have the creditor sign and confirm receipt. When handling such cases, divorce lawyers in Shenzhen often encounter spouses being inexplicably pursued for debt, only to find out later that the agreement only states internal ownership without informing the public. The complex situation of property division can refer to the one we have compiled70% of Shenzhen divorce cases compete for property, the other party is dragging on, how to divide the 8 million yuan propertyIt discusses the handling strategies when real estate and debt are intertwined.

What does the court think of signing an agreement and then reneging on it

There are two situations. If the agreement itself is valid and one party reneges on its performance, the other party may sue to confirm the effectiveness of the agreement and divide the property according to the agreement. The court will review whether the agreement was voluntarily signed, whether there is fraud or coercion, and whether the content is illegal. If these situations do not exist, they are usually supported. Another situation is that the agreement is based on divorce as a condition, and if the divorce does not come to an end, the reneging party claims a new division in the divorce proceedings. The court will determine that the divorce property division clause is not effective and then handle it according to the statutory joint property system. So don't write both property ownership and divorce conditions in one agreement, as this is the most common mistake. Every year, there are a large number of divorce cases in Shenzhen involving disputes over the effectiveness of property agreements. Writing the agreement clearly in advance is much more cost-effective than filing a lawsuit afterwards. If the other party is already dragging on or their financial situation is complicated, you can take a lookEvery year, 50000 couples divorce in Shenzhen. What if the other party stays togetherIt discusses litigation strategies and timelines.

Before writing the agreement, do these three things first

Firstly, make a complete inventory of assets. Real estate, vehicles, deposits, stocks, funds, insurance, company equity, accounts receivable, intellectual property income, list them one by one and do not omit them. Secondly, clarify the purpose. Whether to protect premarital property, isolate business risks, or arrange inheritance, the purpose is different and the wording is different. Thirdly, seek professional lawyers to draft or review. An effective spousal property agreement is not about how beautifully written it is, but about clearly delineating boundaries and closing loopholes. When drafting such agreements, the marriage and family team of Guangdong Zhiming Law Firm will simultaneously provide a legal opinion, marking the points that may be challenged in advance, so that the parties can have a clear idea when signing. For issues related to property ownership and transfer, reference can also be made70% of divorce cases in Shenzhen involve property disputes, with nearly 8 million yuan of pre marital assets being dividedandBuying a house in Shenzhen is being cheated, transfer of ownership is stuck, and one house is being sold twice. Should I choose a lawyer or handle it myselfPractical analysis of these two articles. For more marriage and family issues, you can visitGuangdong Zhiming Law Firm Marriage and Family Affairs Column Homepage.

Author: Marriage and Family Team of Guangdong Zhiming Law Firm. If you are considering signing a prenuptial agreement or marital property agreement, or have already signed but are unsure of its effectiveness, it is recommended to bring the agreement and property certificate to the office for a face-to-face conversation. Hotline: 0755-25986969, located in Futian District, Shenzhen. We do not make promises, we only clarify the legal risks and feasible paths.

Disclaimer: The content of this article is a general sharing of legal knowledge and does not constitute legal advice on any individual case. The effectiveness of each agreement depends on specific terms, signing background, and evidence, and there may be differences in the judgment criteria of different courts. Please do not dispose of property or sign documents solely based on the content of this article. For specific questions, please consult a practicing lawyer.