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Prenuptial Agreement in Hong Kong

A prenuptial agreement in Hong Kong is commonly abbreviated to prenup or prenupt.

A prenuptial agreement  is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other. In the situation of Hong Kong, we mean 'prior to marriage".

Objectives

  • to cut huge legal fees in disputes that can last for years
  • save parties from mental trauma in litigation
  • resolve financial issues more easily
  • reduce chance of personal attacks which hurt both parties
  • option to deal with marital relation

Content of Prenuptial Agreement

The content of a prenuptial agreement can vary widely, but commonly includes:

  • division of property and 
  • spousal support in the event of divorce or breakup of marriage
  • terms for the forfeiture of assets as a result of divorce on the grounds of adultery
  • conditions of guardianship 

In some countries, including the Netherlands, the prenuptial agreement not only provides for the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy. Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in addition to, or some cases, in lieu of prenuptial agreements.

Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married.

 


Legal Significance of Pre-nuptial Agreement to Court in Divorce

When the husband and wife go for a divorce, what the divorce court is envisaged to consider regarding the importance of a pre-nuptial agreement may be as follows. Nevertheless, these are general rules and applicability differs when it comes before different judges. Please consult your lawyer before you make up your mind:

  • whether the Pre-nuptial Agreement has made full disclosure of the assets of the parties. 
  • is the size of the assets significant? The more the assets, the more weight to be given by the court
  • How long the marriage has lasted? The longer the marriage, the less the weight attached by the Court. This is because with the passage of time, the family will more likely have experienced more changes in terms of family composition such as the growing up of children, the sacrifice of the married parties in the course of family commitment, illness, financial and income changes. This does not mean that a short marriage will make a pre-agreement obsolete. The key point is the post-marriage changes to the family. For instance, sudden coming of tragedy to the family out of illness or financial change due to huge investment loss or business loss. 

Buying a Property in Hong Kong

Our conveyancing legal team stands ready to assist you in completing the title acquisition of the property you intend to purchase in Hong Kong. We have extensive experience and skill sets on dealing with purchase of houses, apartments, commercial properties such as offices and factories.

Below we have some helpful information on buying real estate in Hong Kong and what the process involves. Our legal team can guide you through the whole process very simply so you that you do not unwittingly fall into any traps due to a lack of understanding.

Are there restrictions on foreign ownership?

There are NO restrictions. Foreigners are permitted to own any land or properties in Hong Kong without any restrictions.

What are my ownership options?

The nature of ownership is not freehold but rather a long leasehold. For example, land situate in the New Territories has a lease term up until year 2047. In Hong Kong, you have the option to buy as an individual (including joint names with your spouse) or through a corporation. For large projects, its best to own property through a Hong Kong corporation.

Step One: Confirm the title

People usually find a property through an estate agent. On finishing negotiation, the estate agent will arrange you to pay an initial deposit (which is usually up to 4% of the purchase price) and to sign a provisional agreement for sale and purchase with the seller. A provisional agreement for sale and purchase consists of pre-printed standard terms widely adopted in the property market.

Before the signing, the first thing you need to do is confirm the legal owner of the property. This is done by making a title search at the Land Registry which is a Government department deposited with all property instruments on land. Either the estate agent or your lawyer may do that on your behalf.

Step Two: Checking the Title

Unlike many other countries, Hong Kong does not practise title registration. Therefore, owner's title is not proved by a title certificate. To ascertain the title, you need a conveyancing lawyer to investigate the title by perusing all instruments relating to the property you intend to purchase. Title investigation is usually done by your lawyer after the signing of the formal agreement for sale and purchase.

Step Three: Signing of Formal Agreement for Sale and Purchase

After you have signed the provisional agreement for sale and purchase, the estate agent will help you to pass its copy to your lawyer. Your lawyer will then contact the seller's lawyer. They will negotiate and agree on the terms of the formal agreement for sale and purchase. After agreement, your lawyer will arrange you to sign it and at the same time arrange you to pay the balance of deposit. By this stage, you will have paid a sum equal to 10% of the property price.

Step Four: Registration of the Formal Agreement for Sale and Purchase

Your lawyer will cause the registration of the formal agreement for sale and purchase at the Land Registry to protect your interest in the property.

Your lawyer will eventually receive the title instruments from the seller's lawyer. He will check the title and give advice you on its title aspect. He may do updated search at the Land Registry if necessary and raise title questions to the seller's lawyer to answer.

Getting clean title to property can be a problem and therefore you need an experienced conveyancing lawyer.

Step Five: Deed Execution: Assignment for Transfer of Title

Once you are satisfied that the title is in order you will sign an assignment with the seller with the arrangement by your lawyer. An assignment is a deed which helps to transfer the property's title to you. You arrange for payment by arranging financing.

Step Six: Transfer the Funds

Purchase price is paid by cheques drawn at your lawyer's bank account. Your lawyer will arrange with you to make sure that your money is available in their account to pay for you by their cheques. The safest thing is pay your lawyer the money several days before the completion date to enable clearance of the fund. This is extremely important in Hong Kong because non-payment before the agreed completion time on the completion date will mean your breach of the agreement. Breach will result in loss of the deposit and a seller's claim for other losses. When your lawyer has paid the purchase price for you in full to the seller, the seller will send the keys of the property to your lawyer to enable you to take possession of it.

Step Seven: Register the Assignment at the Land Registry

Your lawyer will do this for you in order to protect your interest in the property. Once the registration process is completed, your lawyers will give you the registered deeds and the property will be yours. In case your purchase is financed by a bank's mortgage, the registered deeds will be passed to the bank for their custody as a lending security.

Transaction Costs: Commission and Legal Cost

Real estate agent commissions typically 1% of the price and are paid by the seller and the buyer each. The legal fee to your lawyer is by agreement. There is no standard fee.  Agree the fee with your lawyer before you appoint them to deal with the conveyance. The buyer must pay the expenses registering the new deeds. The amount is fixed by the Government. For example, it is $500 to register a mortgage deed. The same fee amount applies to an assignment.

Government Tax: Stamp Duty

You have to pay the Government stamp duty on the transaction.Property below $2,000,000 is $100 only. If you let a property to a tenant, you have to pay the property tax on the rental income. However, there is no capital tax in Hong Kong.

Financing

It is easy to get a mortgage in Hong Kong if you have an income. Local financing is widely available for foreign residents. Many banks in Hong Kong are extremely active in the mortgage loan markets. They offer terms to home buyers with competitive rates. The loan term can be as long as up to 25 years.

PROPERTY HOTLINE: 68388789 David Mann (Office at Central, Hong Kong)


Matrimonial Proceedings: Divorce, Maintenance & Child Custody

In Hong Kong matrimomial legal proceedings include divorce, maintenance, child custody and adjustment on matrimonial properties or assets. Contentious proceedings are dealt by the Family Court, Hong Kong.

We provide matrimonial clients with our complete attention and act quickly in response to their legal needs. We have a team of lawyers who are skilled and experienced in Hong Kong matrimonial legal matters: divorce, maintenance and child custody. 

We are also able to give legal advice on financial settlements and/or children issues. In the break-up of relationships, we offer a complete legal service including:

  • divorce (contentious or non-contentious)
  • separation 
  • maintenance to spouse or children
  • child custody and access. 

We welcome your phone call or e-mail enquiry.  


Objectives or Purposes on Setting Up a Family Trust in Hong Kong

Trusts have multiple objectives or purposes. When setting up a Family Trust in Hong Kong, a settlor usually has the following in mind as the consideration factors:

Family Wealth

  • To help manage family wealth
  • To keep family wealth consolidated
  • To preserve the family wealth
  • To protect the family wealth
  • As a vehicle to foster the stewardship of family wealth
  • To help fund family member's new ventures

Save Costs & Avoid Troubles

  • To avoid arguments within the family
  • To pass on family values
  • To avoid probate
  • To provide confidentiality

Beneficiaries & Well Being

  • Enhance the lives of the beneficiaries
  • As an emergency fund for the family
  • To protect young beneficiaries
  • To make provisions for Settlor's incapacity
  • To make provisions for surviving spouse

Family Business

  • Succession planning purposes 
  • To help continue the family business

Charity

  • For charitable and / or philanthropic purposes

 


Henry Chung, Partner: Civil Litigation Lawyer, Commercial Contracts & Criminal Defence

香港律師‧Henry Chung
Contact 
641 99999 

Address:
Room 902, 9/F Hollywood Plaza, No.610 Nathan Road, Kowloon

Civil Litigation,
Criminal Defence,
Divorce,
Commercial Contracts,
Wills, Probate,
Real Properties

 

  • Partner
  • Solicitor Hong Kong
  • Hong Kong litigation lawyer
  • Website on criminal defence: hongkongcriminallawyer.com
  • Member, Law Society of Hong Kong
  • Member, Maryland State Bar Association
  • Member, New Jersey State Bar Association
  • Member, American Bar Association
  • Certified Notary Public, Maryland
  • Juris Doctor, Georgetown Law Center, Washington DC 
  • PCLL, University of Hong Kong, Hong Kong
  • B.A. Government and Economics, Cornell University, Ithaca NY 
  • Arnold & Porter, Washington DC, Staff Attorney in 2006
  • Food and Drug Administration, Center for Biologics Evaluation & Research, Rockville MD 
    Litigation/Trade Secrets Attorney in 2003-6

Capabilities:

  • Comprehensive handling of personal injuries and employees’ compensation cases, negotiation of settlement, attending trials and assessment of damages hearings.
  • Comprehensive handling of civil litigation cases including drafting of pleadings and correspondences, negotiation of settlement, and arranging mediation.
  • Comprehensive handling of criminal litigation cases , trials, mitigation, plea and sentencing hearings.
  • Acting for vendors and purchasers in conveyancing transactions including raising and answering requisitions and comprehensive study of title deeds.
  • Extensive handling of family law cases including drafting of pleadings and obtaining Divorce Order Nisi and Order Absolute.
  • Extensive handling of probate cases including drafting of wills and obtaining letters of administration for clients.
  • Conducted legal research and client interviews

 


Media & Entertainment Legal Practice: Litigation & Transactional

Our partner Henry Chung is a musician. We handle media and entertainment clients on their litigation and transactional legal needs.

Litigations in Courts:

On litigations, we assist clients in offensive and defensive legal actions involving other parties:

  • defence in legal proceedings
  • issuing preliminary demands/letters before action or commencing a legal action when someone is violating their legal rights
  • responding to governmental inquiries or when accused of violations of the law.

Transactions:

In transactional aspect, we facilitate business deals, negotiation tactics, strategic business initiatives, and other contractual or law matters involving in business:

  • production contracts
  • talent contracts
  • financing contracts
  • business formation in different legal entities
  • trademark laws
  • copyright laws
  • performing rights in laws
  • moral rights in laws.