What is a prenuptial property agreement, and how do you make it valid?

A prenuptial property agreement (thỏa thuận tài sản trước hôn nhân) is a document two people make before registering their marriage to choose a property regime by agreement (chế độ tài sản theo thỏa thuận) instead of the statutory regime (Article 28(1) of the Law on Marriage and Family 2014 (Đ.28 khoản 1 Luật HN&GĐ 2014)). It must be notarised or certified and takes effect from the date of marriage registration (Đ.47). On divorce, the court divides property according to that agreement; anything the agreement leaves unclear is governed by the general rules (Đ.59 khoản 1).

Without an agreement, how is property treated?

Without an agreement, the spouses are under the statutory property regime (chế độ tài sản luật định), set out in Đ.33 to Đ.46 and Đ.59 to Đ.64 (Đ.28 khoản 1). Under this regime, almost all income during the marriage, including interest and rent from separate property, is joint property (Đ.33 khoản 1). Whoever claims an asset is separate must prove it (Đ.33 khoản 3).

A prenuptial agreement is useful when one side has substantial assets before marriage, owns a business or shares, or already has children from a previous relationship and wants to keep property separate. It is an option, not a requirement.

How do you make the agreement valid?

There are three conditions on form and timing (Đ.47 Luật HN&GĐ):

1. Made before marriage. An agreement signed after the date of marriage registration is not an agreement establishing the property regime.
2. In writing, notarised or certified. A hand-written document that is not notarised or certified does not qualify.
3. Takes effect from the date of marriage registration. If the two do not marry, the agreement has no effect as a marital property regime.

The agreement must also meet the conditions for a valid civil transaction: both sides have capacity, act voluntarily, and the content does not breach prohibitions of the law or social ethics (Đ.50 khoản 1 điểm a, referring to the Civil Code).

What should the agreement contain?

The basic contents are (Đ.48 khoản 1):

• Which assets are joint property and which are each person's separate property;
• The spouses' rights and obligations over joint and separate property and related transactions; the assets used to meet the family's essential needs;
• The conditions, procedure and principles for dividing property when the property regime ends, for example on divorce;
• Other related matters.

The two of you can choose many models: complete separation, only certain assets joint, or income joint while assets owned beforehand stay separate. Be specific: the house and land certificate numbers, account numbers, company names and capital percentages, how income from separate property is treated.

Is there anything the agreement cannot do?

Some rules apply whichever property regime you choose (Đ.28 khoản 2):

• Spouses have equal rights over joint property; work in the home is treated as income-earning work (Đ.29).
• Each person must ensure the family's essential needs, contributing separate property if joint property is not enough (Đ.30).
• Transactions concerning a house that is the only home require the spouses' agreement; a separate owner must ensure housing for the couple (Đ.31).
• Rules protecting third parties acting in good faith regarding bank accounts, securities and movable property not subject to registration (Đ.32).

The court declares the agreement invalid (vô hiệu) when (Đ.50 khoản 1):

• It does not meet the conditions for a valid transaction under the Civil Code;
• It breaches Đ.29, 30, 31 or 32;
• Its content seriously breaches the rights to support and to inherit and other lawful rights and interests of parents, children and other family members.

Example: a clause allowing one side to contribute nothing to the family's essential needs, or depriving a child of the right to support, risks being declared invalid. A request to declare it invalid is filed at the court where the requester lives or works (Article 39(2)(t) of the Civil Procedure Code (Đ.39 khoản 2 điểm t BLTTDS)).

Can the agreement be changed after marriage?

Yes. The spouses have the right to amend and supplement the property regime agreement, and the amendment must also be in writing and notarised or certified, as when it was made (Đ.49).

If you are already married without an agreement, you cannot "redo" a prenuptial agreement. Instead, the spouses may divide part or all of their joint property during the marriage in writing (Đ.38). Such a division is invalid if it seriously affects the interests of the family or minor children, or is meant to evade obligations to repay debts, pay support or pay taxes (Đ.42).

Where one side is a foreigner, applying a property regime by agreement is also governed by the Law on Marriage and Family and related Vietnamese laws (Đ.130). The Government issues detailed rules on spouses' property regimes (Đ.28 khoản 3). On divorce, for division under an agreement see also dividing property on divorce.

When to ask a lawyer

• One side has a business, shares or rental property before marriage.
• One side is a foreigner or has property abroad.
• You want terms on dividing property on divorce that differ greatly from the principle of halves.
• You are already married and want to divide joint property to separate business risks.