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  • Peter Kam Fai Cheung SBS

Lasting Love

Is marriage an affair of the heart or of financial matters, in the final analysis? Marriage contracts are agreements entered into by a couple before or after marriage to regulate their affairs and assets in anticipation of possible change of circumstances. Such marriage contracts are not uncommon in the United States and in civil law jurisdictions.

In Hong Kong, it used to be the case that courts took a paternalistic attitude towards marriage contracts, rendering them generally unenforceable as against public policy. Since SPH v SA [2014] 3 HKLRD 497, courts would follow the United Kingdom common law developments. Certain marriage contracts, whether pre-nuptial or post-nuptial, carry considerable weight relating to the matrimonial court's discretion when granting ancillary relief.

The parties must enter into the marriage contract of their own freewill, without undue influence or pressure. They must also be advised of the contract's implications by getting sound legal advice. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the contract to govern the financial consequences of the marriage coming to an end.

Further, there should not be any unfair or unconscionable circumstances surrounding the conclusion of a marriage contract, or any material or drastic unforeseen circumstances arising thereafter causing manifest prejudice to one of the parties. Determining whether injustice would be done under a marriage contract involved more than simply ascertaining whether there is any disparity in the value of the assets. The court would only allow one of the parties to depart from a marriage contract if that party demonstrates good and substantial grounds for doing so.

The weight of marriage contracts would be reduced or eliminated if vitiating factors of duress, fraud or misrepresentation are present. Unconscionable conduct such as undue pressure and other unworthy conduct such as exploitation of a dominant position to secure an unfair advantage would not be accepted. A party's emotional state also counts and the circumstances of the parties (age, maturity, previous marital or term of relationship, the significance of the contract and its terms) at the time of concluding the contract are also relevant ie whether the contract is a fair one.

I think the jurisprudential development in Hong Kong reflects the interface between law and society. I feel I belong to the old school, believing lasting love conquers all. Instead of contemplating a post-nuptial agreement, I sing: "I don't care too much for money - money can't buy me love!"

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