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How to Write a Prenuptial Agreement? A Comprehensive Guide to Key Points
Marriage is not only a promise made to each other about the future but also comes with shared responsibilities regarding property, children, and family management. To clarify these issues before entering into marriage, more and more couples are choosing to sign a prenuptial agreement, reaching an early consensus on their rights and obligations to prevent future disputes. In this article, we will use commonly seen agreement terms in practice as examples to help readers clearly understand which matters can be stipulated and which cannot. By doing so, both parties’ rights are protected, the marriage can be maintained in a more stable and transparent manner, and, when necessary, the agreement can serve as strong evidence in court proceedings concerning divorce or property disputes.
What is a Prenuptial Agreement?
According to the Civil Code and its related provisions, a prenuptial agreement, also known as a prenuptial contract, refers to a written agreement made before the formal establishment of the marital relationship. It is based on arrangements for future married life, covering matters such as the property regime, division of household responsibilities, and living expenses. A prenuptial agreement carries the nature of a contract. As long as it is voluntarily signed by both parties and its contents do not violate the law or public order and good morals, both parties are bound by its terms.
How to Write a Prenuptial Agreement?
As mentioned above, for a prenuptial agreement to serve its intended purpose, two requirements must be met:
Both parties voluntarily sign the agreement.
The contents must not violate the law or public order and good morals.
The first requirement is relatively straightforward: as long as the parties sign the contract based on their free will, it is valid. The second requirement is often misunderstood—what exactly can be stipulated, and what might be deemed invalid? Below, we will analyze these points in detail for readers.
Statutory Matters That Can Be Agreed Upon
The law expressly specifies which matters may be included in a prenuptial agreement, set out in Article 1000 and subsequent provisions of the Civil Code. These include, for example:
Matter |
Matter Legal Basis |
Explanation |
|---|---|---|
Use of Surname | After marriage, each spouse may retain their own surname, or they may agree in writing that one or both will prefix their original surname with the spouse’s surname, with registration at the household office. | |
Marital Residence | The couple's residence must be mutually agreed upon. In a prenuptial agreement, they may decide whether to live with parents or in-laws, or to establish an independent residence.。 | |
Household Expenses | Based on each party's financial capacity and division of household duties, they may agree on how to share and pay daily expenses such as utilities, food, insurance, and childcare. | |
Property Regime | The couple may choose in writing between a “community property regime” or a “separate property regime” as the basis for marital property. If no agreement is made, the statutory regime applies. | |
Allowance | Especially when one spouse is a homemaker and the other is employed, the homemaker may request a reasonable amount of allowance (pocket money) from the working spouse for personal free use.。 | |
Child's Surname | Before a child is born, both spouses must agree whether the child will take the father's or the mother's surname. They may also agree on arrangements such as “first child takes father's surname, second takes mother's.” |
- Other Matters That May Be Agreed Upon
Although not explicitly stipulated by law, certain matters have been recognized by court rulings as valid if included in a prenuptial agreement. Examples include the division of household chores, methods of child-rearing, and penalty clauses for infidelity. A few examples are shown in the table below:
Matter |
Explanation |
|---|---|
Division of Household Chores | To prevent household responsibilities from falling solely on one person, it is advisable to discuss division of labor in advance, such as rotating cleaning, cooking, or picking up children, to ensure fairness after marriage.。 |
Child-Rearing Methods | In line with the best interests of the child, the couple may agree on future educational approaches and caregiving methods, such as whether to hire a nanny or live with grandparents. |
Punitive Damages | For example, agreeing that if one spouse commits infidelity or domestic violence, they must pay the other a specified penalty. As long as it does not excessively restrict personal rights and the amount is reasonable, courts generally recognize such clauses. |
Matters That Cannot Be Agreed Upon
According to Article 72 of the Civil Code: “A juridical act that is contrary to public order or good morals shall be void.” In principle, the content and execution of a contract are primarily based on respecting the parties’ intentions. However, if the agreement involves matters that violate public order and good morals, it may be declared invalid by the court. Below is a summary of commonly disputed clauses for readers’ reference:
| Matter | Explanation |
|---|---|
Pre-Established Divorce Conditions | Whether a marriage should be dissolved must be determined by law and actual circumstances. Divorce cannot be forced through a prior agreement. For example, a clause stating “If one spouse commits adultery after marriage, it shall be deemed as unconditional consent to divorce” is considered a “pre-established divorce condition” and will be deemed invalid by the court. |
Pre-Determined Child Custody | According to Articles 1055 and 1055-1, custody arrangements must be decided based on the circumstances at the time of divorce, with the child’s best interests as the primary consideration. Thus, custody cannot be predetermined in a prenuptial agreement. |
Restrictions on Sexual Relations | Sexual autonomy is a constitutional right of personality, and no contract may limit it. For example, clauses requiring a fixed frequency of sexual activity are invalid as they violate legally protected fundamental rights. |
Excessive Financial Burden | If the agreement imposes unreasonable or extreme economic obligations on one party, it will be considered contrary to public order and good morals and thus invalid. Examples include demanding an unreasonably high allowance or requiring one spouse to hand over their entire income. |
Other Clauses Damaging Personality or Restricting Fundamental Rights | This includes restrictions on a spouse’s interactions with friends or family of the opposite sex, forcing specific clothing choices, or dictating personal behavior. Such clauses excessively interfere with personal freedom, violate constitutionally protected rights, and are therefore invalid. |
A prenuptial agreement is not about “distrust” but rather a safeguard for married life.
A concrete, reasonable, and lawful prenuptial agreement can serve as a foundation for building mutual trust, while also helping to maintain stability in married life and reduce unnecessary conflicts and misunderstandings. Unlike a marriage registration form that can be purchased at a bookstore or convenience store, a prenuptial agreement must be tailored to individual needs. Therefore, we recommend that after drafting the contract, couples consult a professional lawyer to confirm its legality and enforceability, or directly entrust a lawyer to draft it. This helps avoid common wording pitfalls and ensures that every provision provides real and effective protection.
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