More and more young couples, especially in large cities in Vietnam, are considering signing a prenuptial contract (prenup) to clearly define property rights and responsibilities before marriage. But when a husband and wife have a dispute, is this contract legally valid, and if so, how is it recognized by the court? The article below will help you answer — with new updates from current legal documents and practices.
The first thing to clarify: in the current Vietnamese legal systemThere are no regulations on the exact use of the term “prenuptial contract”as a type of independent contract.
Instead, the law allows itHusband and wife choose the property regime according to agreementright before getting married (Article 28 of the Law on Marriage and Family 2014).
Therefore, when talking about "prenuptial contract" in Vietnam, many lawyers and experts often understand it as aA written agreement on the husband and wife's property regime is made before marriage, not a new type of contract that is specifically legislated.
To understand how the court handles “prenuptial contract” disputes, it is necessary to look at the following provisions:
Marriage & Family Law 2014
• Article 28 allows husband and wife to choose the agreed property regime if both parties agree.
• Article 47 stipulates that the agreement establishing the property regime must be made before marriage and in writing, notarized/authenticated.
• Article 50 lists cases where an agreement is declared invalid by the court if it violates prohibitions and general principles.
Civil Code 2015
Provides principles on civil transactions: subject, capacity, voluntary will, form, content not contrary to law - this applies to prenuptial agreements because they are essentially civil transactions.
Decree 126/2014/ND‑CP & Joint Circular 01/2016/TTLT
Documents guiding the implementation of the Law on Marriage and Family, including detailed regulations on the application of the statutory property regime when there is no agreement or the agreement is invalid.
In a "prenuptial contract" (understood as an agreement on property regime), the parties can agree to:
Xác định rõprivate propertyof each person before marriage, which assets are considered separate and which are common.
How to handle property during marriage: whether income and arising assets are determined jointly or separately, and who has the right to dispose of them.
Principles, procedures, property division ratio in case of divorce (if desired).
Other content related to property that is not prohibited by law - as long as it does not violate the essential rights of others, public interests, or social ethics.
However, there are limits:Terms regarding moral rights are not agreed upon in this document(for example: ownership rights, child custody rights, personal communication rights...) because the law does not accept such personal agreements.
A prenuptial contract that wants to be recognized by the court when a dispute arises must fully meet the following conditions:
Legal subject— Both parties must have legal capacity and civil act capacity (not incapacitated, not restricted...).
Free will— The agreement must not be forced, deceitful, misleading or coercive; If there are signs of being forced or involuntary, it may be declared invalid.
The purpose and content are not contrary to law or social ethics— The agreement must not violate prohibitions in the Marriage & Family Law, the Civil Code, or other relevant regulations (for example, not depriving the right to support, legal inheritance, etc.).
Document form + notarization/authentication— Must be in writing and notarized or authenticated before marriage registration.
Time— Documents must be signed before marriage registration; If signed after marriage, it is not considered "pre-marriage".
If the agreement does not meet one of the above conditions, the court can invalidate all or part of the contract according to Article 50 of the 2014 Marriage & Family Law.
Suppose husband and wife have a dispute about property division or determination of common property according to the "prenuptial contract", the court will evaluate as follows:
If the document fully meets the above conditions, the court will usuallyacknowledge the agreementas a legal basis for dividing assets according to the signed content.
For example, if the agreement determines that property A is inherently separate to wife A, property B is common, and property C is divided 60/40 upon divorce — the court can base its decision on that without applying the default joint regime.
If the agreement is declared invalid by the court (in whole or in part) because:
Agreement that violates the prohibition (for example, depriving the child of child support rights)
Not following the principles of property regime in the Law on Marriage and Family (Articles 29, 30, 31, 32)
Invalid form or signed after marriage
There are signs of coercion, deception...
then the court willSkip that dealandApply property regime according to lawto divide common/private property.
If the prenuptial contract has areas that are not clearly agreed upon, or does not mention assets arising later, the court willcompensation by law(i.e. apply regulations on common property division according to law) to this part.
Actively dispose of assets: clear about private and common property, who has the right to manage and dispose of which property.
Reduce conflict after divorce: If there is a dispute, the agreement is the basis for quick resolution.
Protect the weak side in the family: if the agreement is fair, it is possible to limit one party's "holding of debt" in common when the capital is personal debt.
Agreement may beThe court declared it invalidif it violates principles related to property, support rights, or is signed under forced conditions.
Agreements that are too detailed regarding personal identity (child custody rights, division of family obligations) may be rejected because they exceed the rights of the property contract.
The situation of assets and income changes greatly after marriage without updating or amending the agreement — which can be detrimental if the old content is no longer appropriate.
The relationship can be affected if the other party feels pressured to standardize assets from the start.
Draft carefully and clearly each clause, avoid ambiguity
Ask a lawyer specializing in marriage and family to participate in drafting and assessing risks
Carefully check the provisions related to alimony and inheritance rights to avoid being considered a violation of the prohibition
Make sure the contract is notarized or authenticated properly before registering the marriage
There are provisions for amending and supplementing the contract if the asset and income situation changes later
In reality in Vietnam, if you call "prenuptial contract" according to the way the parties make itAgreement on property regime before marriageexisting tenselegal basis for court recognition, as long as the agreement meets all legal conditions (subject, voluntary, non-violating content, form, signed before marriage).
However, because this term has not been specifically legislated, the risk still remains: if there are errors in form, violating content, or excessive personal agreement - the court can ignore or declare invalidity. Therefore, it is extremely important to draft, thoroughly check and preserve notarized/authenticated evidence.
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