Prenuptial agreements were once not popular in Asia due to superstitious reasons. Now, they have become one among many more complex considerations for marriages in the modern era.

Historically, the usage of prenuptial agreements in marriages was not a popular option, particularly in Asia. According to Jocelyn Tsao, Hong Kong-based partner at law firm Withers, this was due to superstitious reasons.

«They think that, if you try to do a prenuptial agreement, it's bad luck and it's sort of you thinking that your marriage won't work out,» she explained at a recent media roundtable attended by finews.asia. «But I see that people's mindsets are shifting.»

Increasing Divorce Rates

One of the primary drivers is the overall trend of failing marital relationships. In Hong Kong, for example, divorce applications rose a staggering 25 percent year-on-year in 2023, according to a paper submitted to the Legislative Council’s Special Finance Committee. In fact, such a backdrop has led to greater awareness not only amongst the younger generation but the previous one as well.

«Often times, it's actually the parents who initiate this exercise,» Tsao observed. «From a parent's perspective, they may not want their hard-earned wealth to be passed to a divorcing spouse of their child.»

Multi-Jurisdiction Factor

In addition, marriages also have an increasingly complex set of factors to consider, most notably the multi-jurisdictional nature of many lifestyles. Families may be married in one jurisdiction and residing in another, with the possibility of a vacation home in a third jurisdiction. Tsao notes law regarding the divorce will depend on the location in which the couple’s relationship breaks down, rather than the one where they were married.

«When we do a prenuptial agreement, even if they are doing it here in Hong Kong, I need to consult my colleagues in the UK, US or Singapore to make sure that this one prenuptial agreement can cater to the laws in different jurisdictions because we don't know where the marriage will break down,» she said.

Modern Considerations

There are also other relatively more modern issues to consider for family lawyers when helping plan for marriages. For example, a recent landmark case in New York determined that pets are not considered just chattel or property. Therefore, rulings also consider which one of the couples can provide a better quality of life in addition to who is the original purchaser.

Even the types of assets may be unfamiliar in the legal world, such as cryptocurrencies which may introduce other issues like the difficulty of tracking them if they are custodized in cold wallets or the volatile fluctuation of their value.

«I think this is just another area where the technology is advancing quicker than the law,» said Withers’ New York-based partner Nicky Rooz. «Many judges also don’t understand, let alone clients, spouses and even lawyers.»