A POSTNUPTIAL AGREEMENT: IS IT FOR YOU?

DB resident Stephen Peaker, head of the matrimonial department at Oldham, Li & Nie, shares his expertise.

When it comes to marital agreements, there has been much talk about Prenuptial Agreements but less discussion about Postnuptial Agreements. The question is what is a Postnuptial Agreement and do you need one?

One of the best people to unpack this topic is Stephen Peaker, head of the matrimonial department
at Oldham, Li & Nie (OLN). Stephen is a long-time DB resident. You may find him around the resort playing tennis and spending time with his wife and daughter. Stephen has spearheaded OLN’s support for the DB Pirates, DB Cricket Club, DB Beach Tennis and Forward Motion, and he continues to bring positive energy to the community.

So Stephen, how do Postnuptial Agreements play into the current climate?

A lot of families are managing transition at this time, both in the workplace and at home. The environment in Hong Kong has changed. While I am optimistic that Hong Kong will recover, the reality is that many families are choosing to relocate and, as a result, they can find themselves in a jurisdictional limbo, particularly if divorce is under consideration.

If individuals want to remain in Hong Kong, the courts will have jurisdiction over a divorce, but once individuals leave Hong Kong, the courts no longer have jurisdiction. Individuals who move to another jurisdiction will find that courts in their new home also do not have qualifying jurisdiction until sufficient time is completed in the new jurisdiction.

For example, many US states require an individual to live in a state between 90 days to six months before filing for divorce. A preferred solution may be a mediation agreement, which is a sensible and cost-effective approach to resolve issues. This is a great option if the Hong Kong courts no longer have jurisdiction and cannot deliver a solution. A Postnuptial Agreement is a more formal document. A Postnuptial Agreement can set out how the divorce is to be resolved in terms of finances and children.

What is the better solution, a Pre or Postnuptial Agreement?

To enter into a Postnuptial Agreement, the parties must be married. This is a sensible option when spouses have already decided to divorce, or in some cases, when spouses have decided to reconcile and remain together but if a reconciliation does not work, the spouses enter into a Postnuptial Agreement to protect themselves.

A Prenuptial Agreement on the other hand, is entered into prior to marriage and has no legal effect until after the marriage. A Postnuptial Agreement brings clarity with respect to divorce settlements. It is recognised by courts both in Hong Kong and overseas so long as the spouses are properly represented, there is full financial disclosure and the needs of the spouses are met.

Stephen Peaker heads the Matrimonial Department at Oldham, Li & Nie. He has been practicing matrimonial law for over 30 years and specialises in cross-border matrimonial issues.

Stephen is a Fellow of the International Academy of Family Lawyers which means that his department works with family law experts across the world. To find out more, email Stephen at [email protected] or visit www.oln-law.com.