HO CHI MINH CITY UNIVERSITY OF LAW
MANAGING BOARD OF SPECIAL TRAINING PROGRAMS
------ -----

BACHELOR’S THESIS
FACULTY OF INTERNATIONAL LAW

PRENUPTIAL AGREEMENT
AROUND THE WORLD-EXPERIENCES FOR VIET NAM

STUDENT: PHAM THI KIEU PHUONG
STUDENT CODE: 0955020318
CLASS: ADVANCE CLASS 34th COURSE
SUPERVISOR: Dr. DO THI MAI HANH

HO CHI MINH CITY - 2013


HO CHI MINH CITY UNIVERSITY OF LAW MANAGING
BOARD OF SPECIAL TRAINING PROGRAMS
------ -----

BACHELOR’S THESIS
FORMAL EDUCATION TRAINING
COURSE 34 (2009 – 2013)

PRENUPTIAL AGREEMENT
AROUND THE WORLD-EXPERIENCES FOR VIET NAM

STUDENT: PHAM THI KIEU PHUONG
STUDENT CODE: 0955020318

CLASS: ADVANCE CLASS 34th COURSE
SUPERVISOR: Dr. DO THI MAI HANH

HO CHI MINH CITY - 2013


COMMITMENT
I hereby commit that the thesis “Prenuptial agreement around the world –
experiences for Viet Nam” is my work of research under Lecturer Dr. Do Thi Mai
Hanh’s supervision.
I guarantee what I wrote in my thesis are originated in the process of researching
materials and practice. The data used in the thesis have been studied carefully and
quoted from liable sources. The quoted text is clearly noted and based on verification.
Sources of information referred in this thesis are cited fully according to regulations
of the faculty of international law, Ho Chi Minh University of law.
I am responsible for what is illustrated in the thesis.
Ho Chi Minh city, July 16th , 2013

Pham Thi Kieu Phuong


Contents
INTRODUCTION .......................................................................................................... 1
CHAPTER 1: INTRODUCTION ABOUT PRE-NUPTIAL AGREEMENT .......... 5
1.1.

Overview of Prenuptial Agreements around the world ................................ 5

1.1.1.


History of Prenuptial Agreements ............................................................... 5

1.1.2.

Definition of Prenuptial Agreement ........................................................... 10

1.2.

Analyzing provisions in statutes of some national legal systems ................ 12

1.2.1.

Thailand..................................................................................................... 12

1.2.1.1. Conditions of prenuptial agreement ....................................................... 12
1.2.1.2. Condition of two parties in Prenuptial Agreement ................................ 15
1.2.1.3. Modification and Revocation ................................................................. 15
1.2.1.4. Time to enter into prenuptial agreement ................................................ 15
1.2.1.5. Effect of Prenuptial agreement ............................................................... 16
1.2.2.

France ........................................................................................................ 16

1.2.2.1. Condition of Prenuptial agreement ........................................................ 16
1.2.2.2. Condition of two parties of Prenuptial Agreement ................................ 18
1.2.2.3. Modification and Revocation ................................................................. 19
1.2.2.4. Time to enter into prenuptial agreement ................................................ 20
1.2.2.5. Effect of prenuptial agreement ............................................................... 20
1.2.3.


United State ............................................................................................... 20

1.2.3.1. Condition of prenuptial agreement ......................................................... 20
1.2.3.2. Condition of two parties of Prenuptial Agreement ................................ 22
1.2.3.3. Modification and Revocation ................................................................. 22


1.2.3.4. Time to enter into prenuptial agreement ................................................ 23
1.2.3.5. Effect of Prenuptial agreement ............................................................... 23
1.2.4.

China ......................................................................................................... 23

1.2.4.1. Conditions of prenuptial agreement ....................................................... 23
1.2.4.2. Condition of two parties in Prenuptial Agreement ................................ 24
1.2.4.3. Modification and Revocation ................................................................. 24
1.2.4.4. Time to enter into prenuptial agreement ................................................ 24
1.2.4.5. Effect of Prenuptial agreement ............................................................... 25
1.3.

Common characteristic of Prenuptial Agreement. ...................................... 25

1.3.1.

Enforcement of Prenuptial Agreement ...................................................... 25

1.3.2.

Formalities of Prenuptial Agreement ......................................................... 25


1.3.3.

Contents of Prenuptial Agreement ............................................................. 25

1.3.4.

Two parties of Prenuptial Agreement ........................................................ 26

1.3.5.

Time to enter into prenuptial agreement .................................................... 26

1.3.6.

Purpose of Prenuptial Agreement .............................................................. 26

1.4.

Prenuptial agreement in Vietnam legal system............................................ 26

1.4.1.

Prenuptial agreement in France‟s colony period ....................................... 26

1.4.2.

Prenuptial agreement in South Vietnam before April 30, 1975 ................ 30

1.4.3.


Prenuptial agreement in the law of family and marriage from 1945 until

nowadays ................................................................................................................. 32
1.4.4.
1.5.

Reason for non-providing prenuptial agreement ....................................... 34

Conclusion ....................................................................................................... 35

CHAPTER 2: APPLICABLE OF PRENUPTAL AGREEMENT IN VIET NAM37
2.1. Practices in solving divorce disputes in Viet Nam .......................................... 37


2.1.1. Disputes in determining spouses‟ community property ................................ 37
2.1.2. Disputes in dividing property in kind or value .............................................. 38
2.1.3. Dispute about carrying out property obligation in during the marriage
period .................................................................................................................... 40
2.2. Ability to apply prenuptial agreement in Viet Nam ....................................... 41
2.2.1. Economy in Viet Nam ................................................................................... 41
2.2.2. Traditional culture and Public opinion .......................................................... 42
2.3. The necessary for provisions about prenuptial agreement in the Law on
Marriage and Family of Vietnam ............................................................................ 47
2.3.1. The outstanding problems of property settlement in divorce ....................... 47
2.3.2. The popularity of Marriage with foreigners ................................................. 49
2.3.3. Current situation of making “prenuptial agreement” in Viet Nam .............. 51
2.3.4. Establishment of gender equality regime in family and marriage ................. 52
2.3.5. Points of view of law researchers and the issue of drafting about law on
family and marriage ................................................................................................. 54
2.4. Proposal for family and marriage law ............................................................. 56

2.4.1. Advantages and disadvantages of Prenuptial agreement ..................... 57
2.4.2. Improvement for Vietnam legal system .................................................... 58
2.4.2.1. Agreement-based property institution and legal property institution .... 61
2.4.2.2. Prenuptial agreement .............................................................................. 62
2.5. Conclusion........................................................................................................... 66
CONCLUSION ............................................................. Error! Bookmark not defined.


1

INTRODUCTION
1.

The reasons for making the thesis
Comparative law is an interesting subject and studying of foreign law is a legal

activity which brings many high efficiency and application. However, it is often a
difficult process, where not only the differences between the various opinions but also
the lack of understanding of each other‟s way of legal thinking and legal concepts,
may frequently constitute the greatest difficulty.1 Nowadays, countries in the world
wish harmonization and unification of law, therefore, studying of foreign law
becomes more important. In today‟s modern, jurists can no longer limit themselves to
studying the laws of their own country.
Through the research process, it is realized that most of Western countries and some
Asia countries have prenuptial agreement institution, such as England, Australia,
Austria, Brazil, Canada, China, Finland, Germany, Greece, Ireland, Jamaica, Japan,
Luxemburg, Netherlands, New Zealand, Philippines, Portugal, Russia, Spain, Sweden,
Switzerland, United state, France, Thailand, China… Prenuptial agreement is a
progress institution which allows spouses have freedom right to dispose of their
property during marriage period and after divorce, this agreement must be established

before marriage. This institution brings many certain benefits for legislation field,
application and execution of law of many countries in the world. The author analyzes
provisions about prenuptial agreement of some countries which represent for legal
systems in the fond hope that will learn experiences from these countries. Beside
studying of foreign law, the author also studies about law of Vietnam and there are
evidences to prove that prenuptial agreement existed for a long time ago in history of
Vietnam legal system, but it was abolished by State.
Realizing practice problems in Viet Nam and shortcomings of Family and
Marriage Law 2000 about spouse‟s property institution, with the intention to figure
out reasons for abolishing prenuptial agreement in Viet Nam and restore this
1

Michael bogdan, “comparative law”, kluwer norstedts juridik tano, (2000), pp.10


2

institution. The author, thus decides to make the thesis: “Prenuptial agreement
around the world-experiences for Viet Nam”.
2.

Research situation

Prenuptial agreement is an institution which has been developing for thousands of
years in many legal systems all over the world. Therefore, in other foreign countries,
there has been a large number of research works on this matter. Here are some
remarkable books and articles:
-

Jesse Russell, Ronald Cohn, “Prenuptial Agreement”, Book on Demand,

(2012) and Frederic P Miller, Agnes F Vandome, John McBrewster,
“Prenuptial Agreement”, VDM Publishing, 2011. These books are the
collection of academic articles in legal journal.

-

Gary N. Skoloff, Richard H. Singer, Ronald L. Brown, “Drafting Prenuptial
Agreements”, Aspen Publishers Online, 1995. Prenuptial agreements have
exploded over the past 20 years, not only among celebrities, but also for all
types of people who desire to protect, manage, or enhance their personal,
family, or business assets against foreseen and unforeseen circumstances.

-

Katherine E Stoner Attorney, “Prenuptial Agreements: How to Write a Fair
& Lasting Contract”, Nolo (2012). Write a prenuptial agreement and enter
your marriage with eyes wide open. Marriage is one of the few personal
contracts in which your state dictates the term, unless you create your own
customized premarital agreement. Combining Nolo's legal expertise and
plain-English writing, Prenuptial Agreements makes a potentially touchy
subject easy to deal with while explaining how to create a valid contract.

In Viet Nam, prenuptial agreement is a new issue. Therefore, the number of research
works on prenuptial agreement are relatively few. Academic articles and thesis of
certain scholars such as:
-

Nguyen Hong Hai, “Recognition agreement-based property institution in
family and marriage law of Viet Nam”, legal journal No.3, (1998).



3

-

Master Bui Minh Hong, “Agreement-based property institution in marriage
and family from foreign law to Vietnam law”, legal journal No.11 (2009).

-

Pham Thi Linh Nham, “study about prenuptial agreement and ability to
apply prenuptial agreement in Viet Nam”, Thesis, Ha Noi University of
law, (2010).

3.

The purpose of the thesis

First of all, the thesis will give a general understanding of some fundamental
academic issues in relation to prenuptial agreement to define the concept,
characteristics of prenuptial agreement. besides, Introduce about history of prenuptial
agreement in the world.
Secondly, under a comparative view, the thesis will study about prenuptial agreement
of national legal systems.
Thirdly, The author will give analysis about ability of Viet Nam to apply prenuptial
agreement and the necessary of prenuptial agreement.
Finally, the thesis will provide several recommendations for further improvement of
current legal provisions in Viet Nam.
4.


The scope of research

In the thesis, the author just concentrates on researching the following points:
Firstly, the thesis will provide an overview of prenuptial agreement, include history of
prenuptial agreement in the world; concept and characteristics of prenuptial
agreement of some national legal system. This scope is limited in provisions relate to
prenuptial agreement of Thailand, France, United State and China.
Secondly, the thesis analyzes existence of prenuptial agreement in history of Vietnam
legal system. This part is limited in regulations of legal documents from France‟s
colony period to period from 1945 to 1959.
Finally, thesis will clarify necessary of prenuptial agreement in respect with Vietnam
legal system through practices and theoretical basis. There is a certain limitation in
some issues which relate to making detailed or supplementing prenuptial agreement
for family and marriage law 2000.


4

5.

Methodology

For the thesis‟s purpose being mentioned above, the author will combine various
kinds of legal methods as follows: Firstly, synthetic method is an effective method
used to collect relevant information from different sources both preliminary and
secondary: cases, books, legal documents, online material, etc. and to give conclusion.
Secondly, there is enumerative method to list out essential information for arguments
of thesis. Thirdly, the thesis has comparative method, under this method, the thesis
figures out the similarities and differences about prenuptial agreement between
different legal systems. Besides, the thesis also uses case study to illustrate the Viet

Nam‟s practice and prove for thesis„s arguments. Finally, the author applies analytical
method throughout research working.
6.

Significance of the study

The thesis “Prenuptial agreement around the world-experiences for Viet Nam” is a
systematic and comprehensive research work about prenuptial agreement in many
legal systems. Theoretical value of knowledge of foreign law about prenuptial
agreement is a information source to help readers make reference. The thesis also
gives readers an overview about practices in Viet Nam and states necessary of
prenuptial agreement for Vietnam legal system. Generally, the thesis is a personal
contribution for legislation field and improvement for current legal draft.
7.

Structure

The thesis is divided into two main chapters, as defined below:
Chapter 1:

Introduction about prenuptial agreement.

Chapter 2:

ability to apply prenuptial agreement in Viet Nam – experiences for Viet

Nam legal system.
Conclusion.



5

CHAPTER 1: INTRODUCTION ABOUT PRE-NUPTIAL AGREEMENT

1.1.

Overview of prenuptial agreements around the world
1.1.1. History of prenuptial agreements
Property agreements between engaged couples are nothing new. People have

been making prenuptial agreements for thousands of years.2 First prenuptial
agreements might appear from ancient Roman under forms as “Nuptias non
concubitus sed consensus facit” and “Stipulatio”. In an easily understanding way,
“Nuptias non concubitus sed consensus facit” means “marriage agreement” which
wives did not depend on husbands in ancient Roman marriage. “Stipulatio” means
agreement about conditions of dowry. The author shall analyze these forms in detail.
Firstly, we shall study about “Nuptias non concubitus sed consensus facit”.
Under Roman law in the 1st century, there were two forms of marriage, cum manu and
sine manu (also known as Manus).3 For the cum manu marriage, The wife was placed
under the legal control of her husband; she entered her husband‟s family legally, the
wife thus fell under her husband‟s potestas or his father, She had no rights of intestate
inheritance in her own family; however she had rights of intestate inheritance in her
husband‟s, under cum manu marriage, the wife‟s property was her husband‟s or his
father‟s, She was legally related to both husband and children. 4 For the sine manu
marriage, the wife was under the legal control of her father, in other words, the legal
status of the bride did not change after the marriage, in regards to property rights. The
wife stayed in her natal family, She could thus inherit from her intestate father, she
did not legally enter her husband‟s family, she still remained a member in her father‟s

2


Stanley Yorker, “Prenuptial Agreements: Thousands of Years of History”,
(last visited May
7, 2013)
3
John Peradotto, J. John Patrick Sullivan, “Women in the Ancient World: The Arethus Papers”, State
University of New York Press, (1984), page 243
4
Virgil, The Aeneid, “First Century Rome”, (last visited May 7, 2013)


6

family and the fact that in Roman law she was related neither to her husband or to her
children, She thus had no rights of intestate inheritance from her husband. Under the
conditions of what was called sine manu, the women was liberated from the
husband‟s power, especially for property problem.5
Nuptias non concubitus sed consensus facit (marriage agreement)6 is a legal maxim in
Latin which means that not sharing a bed but consent makes a marriage. Mere
cohabitation does not lead to a marriage, a marriage takes place only if there is
consent.7 In other words, it is a form of marriage agreement in Ancient Roman
marriage when wives were not controlled under power of husbands, called is sine
manu. Sine manu is established and obligated to base on “Nuptias non concubitus sed
consensus facit” which is an agreement to determine wife‟s separate property before
marriage, base on Nuptias non concubitus sed consensus facit, the wife can control
her own property. It is believed that marriage no longer required that a husband
possess absolute ownership.
Secondly, we shall get to know about “Stipulatio”. Stipulatio, in Roman law,
is a form of contract based upon a simple question and answer. It had no parallel in
other legal systems. Stipulatio was developed, at first, with very strict rules. Although

no witnesses were required, both parties had to be present during the entire
proceedings, which had to be one continuous act. The contract was oral and had to be
made in Latin. The form could be used only by citizens; 8 Stipulatio could be used for
any lawful purpose: to promise a dowry, make a sale, engage one's services, and so
on.9 Dowries, often considered to be early prenuptial agreements, were mentioned in
seventh century writings as a necessity.10 One of the most important aspects of the
5

John Peradotto, J. John Patrick Sullivan, “Women in the Ancient World: The Arethus Papers”, State
University of New York Press, (1984), pp.243-247.
6
Perry, Joseph N. “Canonical Concept of Marital Consent: Roman Law Influences”, 25 Cath. Law. 228 (19791980), pp. 228
7
USLegal, Inc., About definition, Inc., (last visited May 7, 2013)
8
“Stipulatio”, encyclopedia britannica, (last
visited July 7, 2013).
9
Alan Watson, “Roman Law and Comparative Law”, University of Georgia Press, (1991), pp.125
10
Art Cosgrove, “Marriage in Ireland”, College Press, (1985), pp.13-17


7

practical and business-like arrangement of Roman marriage was the dowry. The
dowry was a contribution made by the wife‟s family to the husband to cover the
expenses of the household. The parents were allowed to agree about dowries, a
detailed list of the property might be made before the marriage took place.


11

In the

absence of special arrangements made on the constitution of the dowry, the fate of the
dowry at the end of a marriage depended on its original source. Where agreements
had been made in advance about disposal of the dowry, it was called “dos recepticia”
and was dealt according to the terms of the agreement. Roman law distinguished
between “dos profecticia” given by the bride‟s father, this type of dowry could be
recovered by the donor in case of the marriage ended in death or divorce , and dowry
“dos adventicia” was given by the daughter herself, The wife usually recovered this
dowry. However, if she died, the husband retained this dowry.12
From above analyses state that “Nuptias consensus facit” and “stipulatio” are the
first forms of prenuptial agreement. Although it did not have whole characteristics of
prenuptial agreement as nowadays, it had aboriginal elements of prenuptial
agreement.
It is believed that prenuptial agreement was the result of historical influences. It
includes tradition, cultures, state power, freedom rights and religion ideas (here is
Christianity- a religion which has important influence in society). At the beginning of
Christianity, point of view of marriage under the influence of two traditions: Jewish
tradition and Roman Tradition. According to Jewish tradition, Religion played an
important role in marriage, it was shown through ceremonies and good wishes.13
Hebrew conducted marriage in two periods14: the first period was espousal, this
period must recite the blessing; the second period was wedding ceremony which was
conducted with many important ceremonies after a espousal year. In fact, Roma
11

Judith Evans Grubbs, “Women and the law in the Roman Empire: a sourcebook on marriage, divorce and
widowhood”, Rouledge, (2002) , pp. 97
12

Jane F. Gardner, “Women in Roman Law & Society”, Indiana University Press, (1991), pp.105
13
Tran Chung Ngoc, “Catholic faith- Origin of Christianity”, Giao Diem publisher, (2000): Christianity
originated from Jews and appeared in area of Roma empire, until 61 Christianity became popular in Roma.
14
Maurice Lamm, “The Jewish Way in Love and Marriage”, Harper and Row Publishers, (1980), pp. 151.


8

tradition emphasized agreement, the state of Roma did not intervene to ceremonies of
marriage, they respected the habits and customs of folks on Roma Empire, Roman
legislators assigned legal elements to prevent litigation cases. Therefore, Anyone
could conduct wedding ceremony in any form but they must have agreements. If they
did not have agreements open in public, they were considered as illegal spouse by the
law.15 At the beginning, Christianity was under the influence of Jewish tradition
much, so it did not mention to agreements in marriage.16
The 5th Century, Roma Empire collapsed and Germanic tribe established a large
number of Feudalism western countries. In this period, social structure was
disordered, all power fell into Catholic Church. Agreements in marriage were
determined clearly in canon law. In the 13th Century, the point of view of religion
emphasized the agreement in marriage, it appeared a type of contract which had been
established before marriage to provide rights and obligations of spouses. This contract
had whole characteristic of a prenuptial agreement. Legal value of Prenuptial
agreement was acknowledged in the first Civil Code in world- Napoleon Civil Code
1804.
It is believed that Prenuptial agreement was popular with Christian who follow Roma
Catholic Church, Because the point of view of Catholic Church did not allow divorce,
this led to need methods in order to solve the problems when the spouse had conflicts.
One of the conflicts was property problem, therefore, prenuptial agreement was

considered to be essential.
The Hebrew marriage contract, called the “ketubah”, is at least 2,000 years old. This
contract was intended to protect women in case of divorce or widowhood by setting
out the husband‟s financial obligation to the wife. This agreement also made it
expensive for a husband to divorce his wife and so made marriages more stable.
By the ninth century in Europe, husbands were required to secure one-third of their
property to their wives on their death as dower rights. Wives sometimes brought
15
16

Stefano M.Grace, “Journal of transnataional law & policy” California University, (2003), pp. 480.
N. Levison, The Jewish Background of Christianity (1932).


9

dowries of money or land to the marriage. These arrangements were covered in an
agreement drawn up before the marriage.
In fifteenth century England, Edward IV reportedly had a prenuptial agreement with
Eleanor Butler sometime between 1461 and 1464. Up to the 19th century in the
United States, married women could not own property. This began to change when
New York State passed the Married Women‟s Property Act of 1848. Initially, women
needed marriage contracts to guarantee their property in case of divorce or the
husband‟s death.17
In summary, we can see that prenuptial agreement began to appear a long time ago
around the world. Prenuptial agreement first began from ancient Roma period with
first forms were “Nuptias non concubitus sed consensus facit” and “Stipulatio”.
Besides, Prenuptial agreement was a combination of many factors, it included
tradition, cultures, state power, freedom rights and religion ideas and Christianity was
first origin religion of establishing prenuptial agreement. However, at the beginning

Christianity did not mention to agreements in marriage, until when Roma Empire
collapsed and Germanic tribe established a large number of Feudalism western
countries. All power fell into Catholic Church. Agreements in marriage was
determined clearly in canon law. It appeared a type of contract which had been
established before marriage to provide rights and obligations of spouses. This contract
had whole characteristic of a Prenuptial agreement and legal value of prenuptial
agreement was acknowledged in the first Civil Code in world- Napoleon Civil Code
1804. The Hebrew marriage contract, called the “ketubah”, is at least 2,000 years old.
Then it started spreading to other countries such as United Kingdom, United
State...and nowadays, may refer to: United Kingdom, France, United State, Germany,
Thailand, etc.

17

Stanley Yorker, “Prenuptial Agreements: Thousands of Years of History”,
(last visited July 7,
2013)


10

1.1.2. Definition of Prenuptial Agreement
Prenuptial agreement can be defined from various sources, such as definition from
legal dictionary, legal documents, research papers, etc.
According to Black‟s Law Dictionary: “Prenuptial agreement (antenuptial
agreement) is a written contract between two people who are about to marry, setting
out the terms of possession of assets, treatment of future earnings, control of the
property of each, and potential division if the marriage is later dissolved. These
agreements are fairly common if either or both parties have substantial assets,
children from a prior marriage, potential inheritances, high incomes, or have been

"taken" by a prior spouse”.18
According to the one-stop online resource: A prenuptial agreement, also known as a
premarital agreement, is a contract which the spouses or civil partners enter into
before their union is legally joined. Premarital contracts and prenuptial agreements are
ancient concepts, having been practiced by many ancient civilizations and cultures.
Scholars theorize that the practice dates back to ancient Egypt; there are also mentions
of similar concepts in Roman, Jewish, Celtic, Middle Eastern, and European societies.
The concept of the protection of assets on the dissolution of marriage has been carried
down through history and is thriving in modern society, largely unchanged from its
original form.19
According to a research paper about “Guide to Wedding Ceremonies for Interfaith
Couples”: In the Jewish religion, marital contracts called “ketubahs” have been
around for more than two thousand years. A ketubah is a special type of Jewish
prenuptial agreement. It is considered an integral part of a traditional Jewish marriage,
and outlines the rights and responsibilities of the groom, in relation to the bride. A
Jewish legal marriage document with a legacy spanning two thousand years. It is
18

Black‟s Law Dictionary (9th ed.) (2009), Thomson Reuters, United States of America, pp.546.
Gwen Wark, “Definition of Prenuptial Agreements”, (last visited May 10, 2013)
19


11

typically signed before the wedding ceremony by the couple and at least two
witnesses. It was a legal document that detailed some of the rights and obligations of
the bride and groom. It offered some protection, in this case for the bride, in the event
of divorce.20 Traditionally, a “ketubah” is a legally binding marriage contract that
“verifies that the groom has acquired the bride and agrees to provide for her, and

includes a lien to be paid by the groom in case of divorce”. It is signed by two
witnesses, and the bride‟s only participation is a choice either to accept or to reject the
arrangement.21 Besides, According to section 2 of Uniform Premarital Agreement Act
(UPAA) in United State: “Premarital agreement means an agreement between
propestive spouses made in contemplation of marriage and to be effective upon
marriage”.
From above analyses, the author give definition about prenuptial agreement:
“Prenuptial agreement or antenuptial agreement, or premarital agreement is a
contract which is established between two persons who will marry legally. Prenuptial
agreement contains provisions about property problems and other problems such as
spousal support, bring up children, plan for future…during the marriage or the end
the marriage in death or divorce.”
In summary, there are many definitions about prenuptial agreement, but generally it
must ensure basis elements below: Prenuptial agreement must be agreement between
two persons who are about to marry, it must be established before marriage, provides
property problems and other problems.

20

“Guide to Wedding Ceremonies for Interfaith Couples”
/>(last visited May 11, 2013).
21
“Guide to Wedding Ceremonies for Interfaith Couples”,
(last visited May 11,
2013).


12

1.2.


Analyzing provisions in statutes of some national legal systems
Prenuptial agreement is an institution which has existed for a long time around

the world. Nowadays, this institution is provided in most of countries in the world.
We may refer to some foreign countries such as England, Australia, Austria, Brazil,
Canada, China, Finland, Germany, Greece, Ireland, Jamaica, Japan, Luxemburg,
Netherlands, New Zealand, Philippines, Portugal, Russia, Spain, Sweden,
Switzerland, United state, France, Thailand… The following, the author will analyze
provisions about prenuptial agreement in legal system of Thailand, France, United
State and China.
1.2.1.

Thailand

There are five main contents shall be analyzed about prenuptial agreement in
legal system of Thailand: condition of prenuptial agreement, condition of two parties
in prenuptial agreement, modification and revocation, time to enter into prenuptial
agreement, effect of prenuptial agreement.
1.2.1.1.

Conditions of prenuptial agreement

Conditions of prenuptial agreement include three elements: enforcement of
prenuptial agreement, formalities of prenuptial agreement and content of prenuptial
agreement.
Enforcement of Prenuptial Agreement
“Any clause in the prenuptial agreement contrary to public order or good morals, or
stating that the relations between them as regards such assets are to be governed by
foreign law shall be void”.22 It means that, prenuptial agreement must have the lawful

content, it must comply with public order or good morals and properties are not
regulated by foreign law. This is prerequisite for the validity of prenuptial agreement.
22

5)

Section 1465 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book


13

besides, the prenuptial agreement is void if not entered into the marriage register at
the time of registering the marriage terms of the prenuptial; or if it was not performed
in writing and signed by both spouses with two witnesses at least and entered in the
marriage register at time of marriage registration affirming that the prenuptial is
thereto annexed.23 Those are conditions about procedures and formalities of prenuptial
agreement which are stipulated in the Civil and Commercial Code of Thailand.
Formalities of Prenuptial Agreement
“The prenuptial agreement is void if not entered into the marriage register at
the time of registering the marriage terms of the prenuptial; or if not performed in
writing and signed by both spouses and a minimum of two witnesses and entered in
the Marriage Register at time of marriage registration affirming that the prenuptial is
thereto annexed”.24 This states that prenuptial agreement must be in writing and
signed by both spouses and a minimum of two witness and entered in the marriage
register at time of marriage registration.
Content of Prenuptial Agreement
Assets of husband and wife except in so far as they are set aside as Sin Suan Tua and
Sin Somros.25 Sin Suan Tua includes: assets or property belonging to either spouse
prior to marriage; Assets or property for personal use, dress or ornament appropriate
for station in life, or tools necessary for performing the profession of either spouse;

Assets or property acquired by either spouse during marriage through a will or gift;
Khongman.26 Each spouse is to manage his or her Sin Suan Tua.27

23

Section 1466 of of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand,
book 5)
24
section 1466 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book
5)
25
Section 1470 of of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand,
book 5)
26
Section 1471 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book
5)
27
Section 1473 the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book 5)


14

Sin Somros includes assets acquired during marriage; assets acquired by either spouse
during marriage through a will or gift made in writing if it is stated by such will or
document of gift to be Sin Somros; Fruits of Sin Suan Tua. In cases of doubt in
regards to determining if a property is Sin Somros or not, it shall be presumed to be
Sin Somros.28 In managing the Sin Somros in the following cases, the wife and
husband have to be joint manager, or one spouse has to receive consent from the
other: Selling, exchanging, sale with right to redemption, letting out assets on hirepurchase, mortgaging, releasing mortgage to mortgagor or moving the right of
mortgage on immovable property or on mortgage able movable property.

Developing or distinguishing the part or whole of the servitude, right of inhabitation,
right of superficies, usufruct or charge on immovable assets. Letting immovable
assets for more than three years and lending money. In addition, contributing a gift
unless it is a gift for charitable, social and moral purposes and is suitable to the family
condition and making a compromise. Moreover, Submitting a dispute to arbitration.
Offering up the property or asset as guarantee or security with a competent official or
the Court.
The management of Sin Somros in a case other than cases listed in paragraph one can
be made by one spouse without having to obtain consent from the other.29 The
husband and wife can manage the Sin Somros, in different manners, in whole or part,
from provisions of Section 1476, given that the prenuptial agreement under Section
1465 and Section 1466 has been made. In such case, the management of the Sin
Somros shall be made in accordance with the prenuptial agreement.
In those situations, where the specifications of the management of the Sin Somros in
the prenuptial agreement are only a part in difference to the clause of Section 1476,
the management of the Sin Somros other than those specified in the prenuptial
28

Section 1474 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book

5)
29

5)

Section 1476 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book


15


agreement shall be made in accordance with Section 1476.30 We can understand that
content of prenuptial agreement includes clauses about managing Sin Suan Tua and
maybe also provide about Sin Somros.
1.2.1.2.

Condition of two parties in prenuptial agreement

“Where the husband and wife have not, prior to their marriage, concluded a
special contract concerning their assets, the relations between them as regards their
assets shall be governed by provisions of this Chapter”.31 We can confirm that the
parties of prenuptial agreement in Thailand are husband and wife, prior to their
marriage, they have established prenuptial agreement.
1.2.1.3.

Modification and revocation

After marriage, the prenuptial contract cannot be changed except by
authorization of the Court. When there is a final order of the Court to effect the
alteration of cancellation of the prenuptial agreement, the Court should inform the
Marriage Registrar of the matter in order to have it entered into the Marriage
Register.32
1.2.1.4.

Time to enter into prenuptial agreement

According to section 1465 of the prenuptial agreement code of Thailand (the
civil and commercial code of Thailand, book 5): “Where the husband and wife have
not, prior to their marriage, concluded a special contract concerning their assets, the
relations between them as regards their assets shall be governed by provisions of this
Chapter”. This article states that prenuptial agreement will be established before

marriage, “Where the husband and wife have not, prior to their marriage, concluded a
special contract concerning their assets…”.

30

Section 1476/1 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand,
book 5)
31
Section 1465 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book
5)
32
Section 1467 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book
5)


16

1.2.1.5.

Effect of Prenuptial agreement

The prenuptial agreement code of Thailand (the civil and commercial code of
Thailand, book 5) does not mention time to take effect of prenuptial agreement.
1.2.2.

France

1.2.2.1.

Condition of prenuptial agreement


Enforcement of Prenuptial Agreement
Napoleon Civil code 1804 does not mention directly to enforcement of
prenuptial agreement. However, see the Napoleon Civil code 1804, we can realize
that, the prenuptial agreement must meet requirements about content and formality.
All matrimonial agreements shall be drawn up in an instrument before a notary public,
in the presence and with the simultaneous consent of all the persons who are parties
thereto or of their agents. At the time of the signature of the agreement, the notary
public shall deliver to the parties a certificate on unstamped paper and without costs,
stating his name and place of residence, the names, first names, occupations and
residences of the future spouses, as well as the date of the ante-nuptial agreement.
That certificate shall state that it must be lodged with the officer of civil status before
the celebration of the marriage. Where the record of marriage mentions that an antenuptial agreement was not made, the spouses shall be, with regard to third parties,
deemed married under the regime of general law, unless, in the transactions entered
into with those third parties, they have declared that they made an ante-nuptial
Agreement.33
Formalities of prenuptial agreement
All matrimonial agreements shall be drawn up in an instrument before
notaire, in the presence and with the simultaneous consent of all the persons who
are parties thereto or of their agents.34 The formalities of prenuptial agreement in
Napoleon civil code 1804 must be in writing and in the presence of notaire and with

33
34

Article 1394 of Napoleon Civil code 1804
Article 1394 of Napoleon Civil code 1804


17


the simultaneous consent of all the persons who are parties thereto or of their
agents.
At the time of the signature of the agreement, the notaire shall deliver to the parties
a certificate on unstamped paper and without costs, stating his name and place of
residence, the names, first names, occupations and residences of the future spouses,
as well as the date of the ante-nuptial agreement. That certificate shall state that it
must be lodged with the officer of civil status before the celebration of the
marriage35.
Contents of Prenuptial Agreement
Spouse can choose community property or separate property regime. Community
property regime includes conventional community property regime and community
property regime of Movables and Acquisitions. Separate property regime includes
regime of separate property and regime of participation in acquisitions.
In terms of conventional community property regime36: Spouses may, in their antenuptial agreement, modify statutory community by any kinds of agreement not
contrary to Article 1387, 1388 and 1389. They may, especially, agree: the
community shall include movables and acquisitions; it will be derogated to the rules
relating to administration; one of the spouse will have the power to appropriate
certain property on condition of an indemnity; one of spouses will have an
appropriation clause; spouses will have unequal shares; there will be a universal
community between them. The rules on statutory community shall remain
applicable on all questions which have not been the subject of the agreement of the
parties.37
In terms of community property regime of Movables and Acquisitions: 38 Where
one of the spouses acquires an immovable after the ante-nuptial agreement, which
contained a stipulation of community of movables and acquisitions, and before the
celebration of the marriage, the immovable acquired during that interval enters the
35

Article 1394 of Napoleon Civil code 1804

See part 2, chapter 2, title V of Napoleon Civil Code 1804
37
Article 1497 of Napoleon Civil code 1804
38
See section 1, part II, chapter II, title V of Napoleon Civil code 1804
36


18

community, unless the acquisition was made in performance of some clause of the
ante-nuptial agreement, in which case it is regulated according to the agreement.39
So, ante-nuptial agreement can provide about spouses acquires an immovable after
the ante-nuptial agreement.
According to regime of separate property40: Where spouses have stipulated in their
ante-nuptial agreement that their property will be separate, each of them keeps the
administration, enjoyment and free disposal of his or her personal property. 41 An
ante-nuptial agreement shall determine the property to which the power granted to
the survivor will relate. It may fix methods of appraisal and terms of payment,
except abatement in favour of beneficiary heirs where there is an indirect
advantage.42
An ante-nuptial agreement may fix the bases of appraisal and the terms of payment
of a possible balance. Having regard to those clauses and failing an agreement
between the parties, the value of that property shall be fixed by the tribunal de
grande instance.43
It may be agreed in an ante-nuptial agreement that the survivor of the
spouses, or one of them if he or she survives, will be authorized to appropriate from
the common stock, before any partition, either a specified sum, or a specified
property in kind, or a specified quantity of a determined kind of property. 44
1.2.2.2.


Condition of two parties of prenuptial agreement

Legislation regulates conjugal association, with respect to property, only in
default of special agreements, which the spouses may enter into as they deem proper,
provided they are not contrary to public morals and to the following provisions. 45 It
means that the law does not regulate spouse‟s property relationship when they enter
into a special agreement which is not contrary to public morals and to the provisions
39

Article 1498 of Napoleon Civil code 1804
See Chapter III, Title V of Napoleon Civil code 1804
41
Article 1536 of Napoleon Civil code 1804
42
Article 1391 of Napoleon Civil code 1804
43
Article 1512 of Napoleon Civil code 1804
44
Article 1515 of Napoleon Civil code 1804
45
Article 1387 of Napoleon Civil Code 1804
40


19

of the law. This is antenuptial agreement or prenuptial agreement and an ante-nuptial
agreement must be drawn up before the celebration of the marriage and may take
effect only on the day of that celebration.46 The parties of prenuptial agreement, thus,

are couples who are about to marriage.
1.2.2.3.

Modification and Revocation

Amendment ante-nuptial agreement is made before marriage
Amendments made in ante-nuptial agreements before the celebration of the
marriage must be established by an instrument drawn up in the same forms.
Furthermore, no change or counter-letter is valid without the presence and the
simultaneous consent of all the persons who were parties to the ante-nuptial
agreement, or of their agents. Any amendments or counter-letters, even provided with
the forms prescribed by the preceding article, shall be without effect with respect to
third parties, unless they were drawn up at the end of the original of the ante-nuptial
agreement; and a notaire may deliver neither an executory nor an office copy of the
ante-nuptial agreement without transcribing the amendment or counter-letter at the
end. After the celebration of the marriage, there may be no amendment to the
matrimonial regime except by the effect of a judgment, either on the application of
one of the spouses, in the case of separation of property or of other judicial protective
measures, or on joint petition of both spouses, in the case of the following Article. 47 It
means that amendment an ante-nuptial agreement must be made in writing, same form
with original and that amendment an ante-nuptial agreement need presence and
consent of all the persons who were parties to the ante-nuptial agreement, or of their
agents. Amendment an ante-nuptial agreement will be effect with respect to third
parties, if they they were drawn up at the end of the original of the ante-nuptial
agreement.
Amendment ante-nuptial agreement is made after marriage
46
47

Article 1395 of Napoleon Civil Code 1804

Article 1396 of Napoleon Civil code 1804