Marriage unites not only emotions but also property rights and obligations between two individuals. As economic life grows more diverse and complex, clearly determining ownership rights, financial responsibilities, and spousal obligations has become essential. Although not directly defined in the legal system, the prenuptial agreement is recognized through the matrimonial property regime established in the Law on Marriage and Family of 2014. This legal instrument allows parties to proactively manage property, protect their rights and interests, and prevent future disputes. This article analyzes the concept, legal basis, key contents, validity conditions, benefits, and risks of prenuptial agreements, clarifying why they are necessary in practice.

1. Concept and Legal Nature of the Prenuptial Agreement

1.1. Terminology and Concept

Although widely used in practice, the term “prenuptial agreement” has not been officially defined in the Law on Marriage and Family of 2014 or related legal documents in Vietnam. The terminology arises from legal provisions addressing the practical need to manage and divide couples’ property before marriage. Under the Law on Marriage and Family of 2014, what constitutes a “prenuptial agreement” is the regime of agreement on the matrimonial property regime before marriage, as stipulated in Article 47 and related provisions.

1.2. Legal Nature

The prenuptial agreement is a special type of civil transaction governed by both the Civil Code of 2015 and the Law on Marriage and Family of 2014. It binds only property rights and obligations—not personal rights such as child custody—because Vietnamese law prioritizes the interests of children and vulnerable parties in family relations.

As a civil contract, the prenuptial agreement is based on freedom of agreement. However, it must meet specific conditions regarding the parties, form, timing, and content to ensure it does not violate legal prohibitions or social morality.

2. Legal Basis Governing the Prenuptial Agreement

The legal basis for prenuptial agreements in Vietnam consists mainly of the following documents:

• The Law on Marriage and Family of 2014: This fundamental document governs marriage and family relations. It provides for two matrimonial property regimes: the statutory property regime and the agreed property regime.
• The Civil Code of 2015: The Civil Code establishes general principles for civil transactions, contracts, validity conditions, rights and obligations of parties, and cases of invalidity. As a civil transaction, the prenuptial agreement must comply with these provisions.
• Decree No. 126/2014/ND-CP (partially expired): This Decree details certain articles and implementation measures of the Law on Marriage and Family of 2014, including guidance on the agreed matrimonial property regime.
• Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP: This Circular guides the settlement of disputes, property division upon divorce, and application of the agreed matrimonial property regime.

3. Fundamental Contents of the Prenuptial Agreement

3.1. Principal Contents Permitted by Law

According to Article 48 of the Law on Marriage and Family of 2014, the prenuptial agreement must include the following fundamental contents:

• The determination of property as separate property or common property of each spouse.
• The regulation of the rights and obligations of spouses with respect to common property, separate property, and related transactions.
• The property to ensure the essential needs of the family.
• The conditions, procedures, and principles for the division of property upon termination of the property regime.
• Other contents related to the property regime as additionally agreed upon by the parties, provided that such agreements do not violate prohibitions of the law.

In practice, common contents included in prenuptial agreements are: the clear identification of the list of separate property of each party prior to marriage such as real estate, vehicles, shares, stocks, savings accounts; provisions on whether the ultimate property regime shall be common or separate; principles for the management, use, and disposition of common property during marriage; responsibilities concerning personal or joint debts; methods of property division upon divorce; and mechanisms for dispute resolution.

3.2. Restricted Contents in the Prenuptial Agreement

Current law does not recognize agreements made before marriage concerning personal rights such as:

• The right to custody of children.
• The right to alimony.
• The obligation to raise common children.
• The regime of cohabitation.

The law protects the rights and interests of children according to the principle of the best interests of the child. Any agreement that violates this principle will be declared invalid by the Court or excluded during adjudication.

4. Classification and Determination of Common Property and Separate Property

4.1. Common Property of Spouses

According to Article 33 of the Law on Marriage and Family of 2014, common property includes:

• Property created by either spouse during the marriage: This includes all income from labor, production, business, and services, as well as profits and yields arising from separate property. Other lawful income—such as bonuses, winnings, and allowances—is also considered common property, except for allowances associated with personal rights such as disability or loss of working capacity.
• Property inherited jointly or gifted jointly to both spouses: When both spouses are designated as heirs or are jointly given property, such property is considered common property.
• Property that the spouses agree to be common property: The law allows spouses to freely agree on the property regime. Even if a property was originally separate, if both spouses agree in writing—and have it notarized or authenticated—that the property will be common, it becomes part of the common property.
• Land use rights acquired after marriage: Land use rights formed during the marriage are considered common property unless proven to be separate. Exceptions include land use rights given as a gift to one spouse only, inherited separately, or purchased with separate property.

Common property is joint ownership by integration, used to meet family needs and fulfill the common obligations of the spouses. If there is no basis to prove that property is separate, it is presumed to be common property.

4.2. Separate Property of Spouses

Article 43, Clause 1 of the Law on Marriage and Family of 2014 defines separate property of spouses as follows:

• Property owned before marriage: All property lawfully possessed by either party before marriage registration is separate property.
• Property inherited or gifted individually during marriage: Property received through inheritance (by will or law) or given as a gift to one spouse only remains that spouse’s separate property.
• Property separately divided under the law: The law allows common property to be divided into separate property in certain cases—for example, when spouses agree to divide common property during marriage, or when the Court orders such division during dispute resolution.
• Property for personal needs: Items tied to personal identity and daily use—such as clothing, personal belongings, and personal jewelry—are generally separate property.
• Property formed from separate property: When one party uses separate property to invest, purchase, or create new property, the result remains separate property. However, profits and yields from separate property during marriage are common property unless otherwise agreed.
• Other property prescribed by law: The law recognizes certain property types as separate—for example, non-transferable personal rights, or personal allowances and compensation such as disability benefits or health damage compensation.

Determining separate property is crucial in prenuptial agreements, as confusion over ownership often causes post-divorce disputes. A prenuptial agreement can list each party’s separate property, specify how it will be managed, define financial responsibilities, and clarify ownership of property formed during marriage from separate sources.

5. Conditions and Procedures for Establishing and Notarizing the Prenuptial Agreement

5.1. Conditions for Validity

Under Article 47 of the Law on Marriage and Family of 2014 and Article 117 of the Civil Code of 2015, a prenuptial agreement is legally valid only if it meets all these conditions:

• Both parties must be eligible for marriage under Article 8 of the Law on Marriage and Family of 2014, and have full civil legal capacity and civil act capacity under the Civil Code of 2015.
• The agreement must be voluntary and equal, without coercion, mistake, fraud, or threat.
• The purpose and content must not violate legal prohibitions or social morality.
• The agreement must be in writing and notarized or authenticated as required by the Law on Marriage and Family of 2014.

The agreement must be made before marriage registration and takes effect only when the parties complete lawful marriage registration with the competent authority.

5.2. Procedures for the Establishment and Notarization of the Prenuptial Agreement

The procedures for establishing a prenuptial agreement are carried out as follows:

• The parties negotiate and agree directly on the terms to be recorded in the agreement.
• A draft of the prenuptial agreement is prepared with the assistance of a lawyer in order to ensure the protection of rights and the legality of the document.
• The agreement and the personal identification documents of the parties are submitted to the notary office for notarization or authentication in accordance with the law.
• The notary or the judicial officer verifies the identity and civil act capacity of the parties, examines the voluntary intent, explains the provisions, and records the mutual consent of the parties before the official signing.
• The agreement is signed and affixed with the seal of the notary or the competent authority for authentication.

6. Legal Effect and Invalidity of Prenuptial Agreements

6.1. Legal Effect

A prenuptial agreement becomes legally binding only when the parties lawfully register their marriage with the competent authority. Without marriage registration, the agreement has no legal value.

During the marriage, spouses may amend, supplement, or cancel the agreement through a written document that is notarized or authenticated in accordance with the law.

Upon divorce, the Court prioritizes the prenuptial agreement when dividing property—provided the agreement is lawful and clear. If the agreement is invalid or contains unclear provisions, the Court applies the statutory property regime to resolve unresolved or unclear matters concerning property, rights, and obligations.

6.2. Cases of Invalidity

According to Article 50 of the Law on Marriage and Family of 2014 and the Civil Code of 2015, a prenuptial agreement is invalid in the following cases:

• Non-compliance with validity conditions for civil transactions regarding parties, intent, content, and form—for example, when one party lacks civil act capacity, the agreement is signed under coercion, fraud, or threat, or the agreement is not notarized or authenticated.
• Violation of Articles 29, 30, 31, and 32 of the Law on Marriage and Family of 2014 concerning equality, spousal rights and obligations, protection of essential family needs, and the right to dispose of property.
• Serious infringement of alimony rights, inheritance rights, or the lawful rights and interests of parents, children, or other family members.
• Regulation of personal rights prohibited by law—such as child custody or child alimony obligations.

When all or part of an agreement is invalid, the invalid portion is deemed never to have existed, and the parties’ rights and obligations are re-established under the statutory property regime.

Specific cases where the Court declares an agreement or part of it invalid include: one party being coerced into signing, one party having impaired perception, ambiguous provisions concerning separate and common property that harm third parties, or using the agreement to evade alimony, inheritance, or other legal obligations.

7. Benefits of Prenuptial Agreements

7.1. Protection of Separate Property and Legitimate Rights

A prenuptial agreement is the most effective way to protect each party’s separate property—especially for individuals with significant assets such as real estate, shares, stocks, inherited property, gifts, or business assets. Large personal debts incurred before marriage can be clearly identified, preventing one party from bearing financial obligations that do not originate from them.

For family businesses, entrepreneurs, artists, public figures, individuals with inherited property, those with substantial assets, or those marrying foreigners or residing abroad, a prenuptial agreement ensures transparency, proactivity, and sustainable legal security.

7.2. Dispute Prevention and Cost Savings

Divorce cases involving prenuptial agreements are typically resolved quickly and clearly, with minimal prolonged litigation. Determining assets, obligations, and rights in advance saves time and legal costs, reduces emotional stress, preserves civility, and protects social relationships after divorce.

Moreover, transparent provisions established before marriage build trust, respect, and proactive preparation for both parties’ futures.

7.3. Protection of Children’s Rights

While a prenuptial agreement cannot eliminate children’s rights—particularly compulsory inheritance rights, alimony rights, and property ownership rights protected by law—it helps protect the inheritance or entitlement of common children or stepchildren from previous marriages by specifying which property belongs to whom, thereby avoiding unwanted inheritance disputes.

8. Risks, Limitations, and Practical Considerations

8.1. Risks Regarding Form and Content

Although effective, prenuptial agreements are vulnerable to legal risks if:

• The agreement is not notarized or authenticated.
• The content lacks transparency, contains ambiguous provisions, or regulates matters too broadly—including personal rights.
• One party does not fully understand their rights, is pressured into signing, or conceals property and fails to disclose property information when signing.
• The agreement contains provisions that violate alimony rights, compulsory inheritance rights, or other relatives’ lawful rights.

8.2. Application Limitations

Vietnamese law recognizes prenuptial agreements only for property matters and does not regulate personal rights such as child custody, educational responsibilities, alimony, household work division, or marital affection.

Provisions on these matters have no legal effect and may invalidate the entire agreement if they complicate its scope.

8.3. Situations Leading to Invalidation

One party is deceived, threatened, or coerced into signing.

The agreement violates legal prohibitions—for example, by eliminating children’s alimony rights or unfairly converting common property to separate property in a way that harms one party.

The agreement affects or reduces third-party rights—such as creditors or property co-owners.

The parties fail to transparently disclose or declare property before signing.

The agreement is drafted too ambiguously regarding property, or is not updated when significant financial changes occur during the marriage.

8.4. Practical Considerations

• Draft and sign the agreement only when both parties fully understand and agree. Independent legal advice for each party is recommended to avoid future complaints.
• Declare and clarify all separate property, common property, debts, and major financial obligations with legal documentation.
• Update and amend the agreement appropriately when significant changes in property or marital circumstances occur.
• Do not misrepresent separate property, conceal information, evade obligations, or exploit the agreement to infringe upon third-party rights.

Conclusion

The prenuptial agreement is an important legal tool that allows spouses to proactively establish their property regime before marriage. Clear agreements on common property, separate property, and related rights and obligations ensure transparency, fairness, and stability in marital relations. Prenuptial agreements not only protect each party’s lawful rights and interests but also reduce disputes, save time and costs in divorce proceedings, and represent a necessary solution consistent with legal developments and contemporary realities.

Prenuptial Agreement Consulting and Drafting Services—A Legal Solution to Protect Spousal Rights

Harley Miller Law Firm provides consulting, drafting, and review services for prenuptial agreements, helping couples clearly establish their property regime before marriage. With experienced lawyers in family and civil law, we deliver comprehensive legal solutions that comply with Vietnamese law and international practices while minimizing potential future disputes.

Our services include:

• Drafting and reviewing prenuptial agreements: Advising on appropriate provisions, clearly distinguishing between common and separate property, and establishing transparent and lawful financial rights and obligations.
• Dispute prevention consulting: Providing preventive solutions and anticipating possible scenarios such as property division upon divorce, debt obligations, and the rights of common and stepchildren.
• Property dispute resolution: Representing clients in negotiations, mediation, or litigation to protect their lawful rights and interests.
• Updating and amending agreements: Assisting in revising or supplementing agreements when significant changes in property or marital circumstances occur.
• Notarization and safekeeping: Guiding notarization and authentication procedures and advising on safekeeping methods to ensure the agreement’s legal validity.

Contact us today for detailed consultation, sample prenuptial agreements, and legal solutions that safeguard your legitimate rights and interests.

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