Pre-nuptial and separation or post-nuptial agreements have historically been considered to be unenforceable in Hong Kong because they ousted the jurisdiction of the court to grant ancillary relief in the event of divorce proceedings. However, whilst they continue not to be binding in all cases, they have progressively been given greater recognition by the Hong Kong courts.

In the English case, Radmacher v Granatino [2010] UKSC42, the UK Supreme Court decided that the rule that pre-nuptial agreements were contrary to public policy was now obsolete. The court added that such agreements are to be given full effect so long as they were entered into by the parties freely and with a full appreciation their consequences.

This was a novel decision and one that Hong Kong had certainly not seen before as it gave very clear guidance as to how much weight the English courts would give to pre-nuptial and post-nuptial agreements.

More recently in SPH v SA (formerly known as SA) [2014] HKCA 56, the Hong Kong courts had an opportunity to consider at the highest level whether the UK Supreme Court had adopted the correct approach and the Hong Kong Court of Appeal unanimously decided that it did.

In this case, the final appellate court was also faced with the question of how much weight a separation agreement would be given under Hong Kong law, particularly where the agreement purported to restrict a wife’s claim for maintenance.

The Court of Final Appeal upheld the English decision and expressed that pre-nuptial and post-nuptial agreements would be given weight in circumstances where it would be fair to do so.

The Court said that these agreements will also be given more weight if, for example, there is full and frank disclosure of the parties’ respective financial positions, if there is no undue influence exerted at the time of signing and if the parties had sought independent legal advice before entering into such agreements.

This is the clearest indication yet that the Hong Kong courts are willing to recognise the impact of separation agreements in Hong Kong and the need to respect divorcees’ right to enter into agreements with a view to regulate their post-separation arrangements, financial or otherwise.

Publication Date: 31st July 2014

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