Hong Kong: Hong Kong Court Of Final Appeal Upholds Landmark Forum Case Involving Nuptial Agreements

Last Updated: 11 June 2014
Article by Sharon Ser and Sindy Wong

Withers are delighted to have taken the lead in a ground-breaking case in Hong Kong concerning prenuptial and separation agreements.  "There is no question that more and more clients will be seeking the financial security that a pre-nuptial or separation agreement can provide as a result of the CFA case in which we succeeded for our client in Hong Kong", said Sharon Ser, Partner at Withers, "and now we can offer them greater certainty of them being upheld in court".

The Court of Final Appeal, the highest Court in Hong Kong, unanimously decided to uphold the Court of Appeal's decision in the case of SPH v SA on June 9. The case involved a question as to whether the case could be heard in Hong Kong but also looked specifically at what weight should be given to the parties' election in their pre-nuptial or post-nuptial agreements to have their marriage governed by the laws of a particular country. The case is very much a landmark decision in terms of how the family courts in Hong Kong are likely to consider prenuptial agreements in other cases.


In this case the Husband and the Wife were born in Germany and both are German nationals. The Wife is also a permanent resident of Hong Kong. The parties met in Hong Kong in 2005 and married there in 2008. They both conducted business and paid income tax in Hong Kong. Prior to their marriage, the parties executed a prenuptial agreement which, importantly, provided that their marriage was to be governed by German law in Germany. The parties' marriage was a short one and they separated in 2010. Following their separation, they executed in Germany a separation agreement which effectively discharged the prenuptial agreement and set out each of their rights and liabilities. In October 2010, the Wife issued divorce proceedings in Hong Kong and, in November 2010, the Husband applied to court for a stay of the Hong Kong proceedings on the grounds that Germany would be the more appropriate jurisdiction in which to have the case heard. 

The Judge at first instance held that Germany was clearly and distinctly the more natural and appropriate forum for the case. In reaching his decision, the Judge placed considerable weight on the prenuptial and post separation agreements executed by the parties. He concluded that the balance of fairness would be achieved by staying the proceedings in favour of Germany, but without prejudice to the Wife's right to apply for financial provision in Hong Kong following a divorce in Germany. The Wife appealed. The Court of Appeal allowed the Wife's appeal on the ground that the Husband failed to meet the burden of proving that Germany was distinctly the more suitable and appropriate forum in which to hear the case. The Husband then appealed to the Court of Final Appeal and, in November 2013, his leave to appeal was granted.

Following a one day hearing on 12 May 2014, the five Justices of the Court of Final Appeal unanimously upheld the Court of Appeal's decision in favour of the Wife.

The Court recognized that the issues before the court had a wide significance involving the impact of agreements to vary the parties' matrimonial property rights under foreign law and separation agreements which purported to restrict the wife's rights to claim maintenance. As the Court said, 'this is an opportune occasion to consider whether Radmacher v Granatino represents the law in Hong Kong.' The court unanimously decided that it did.

Radmacher v Granatino is an English Supreme Court case from 2010 in which the court gave clear guidance as to how the English court would deal with pre nuptial and post nuptial agreements. It was held that the court should give effect to an agreement which is freely entered into by both parties with a full understanding of its implications unless in the circumstances it would not be fair to hold the parties to their agreement. Previously in Hong Kong such agreements were not enforceable, but could be taken into account as one of the circumstances of the case.

The Court did have a word of qualification in respect of agreements reached in some civil law countries: the agreement may only be to adjust the matrimonial property regime in a civil law country rather than made in anticipation of divorce. The Court of Final Appeal said that, although a Radmacher type of prenuptial agreement should be upheld in Hong Kong, not all prenuptial agreements may be if they involve an adjustment to a contractual matrimonial property regime and that this remained a grey area both in England and in Hong Kong.

Sharon Ser, Partner and Head of the Family Law team at Withers, successfully represented the wife in the case and commented:

'We are delighted that the landmark English case of Radmacher has been fully endorsed by the highest court in Hong Kong and further that the we now have clarification that prenuptial agreements and separation agreements should be treated in a similar way, bringing the treatment of prenuptial agreements in line with an earlier ruling of the Court of Appeal. Given the truly international nature of Hong Kong we anticipate there will be a growing number of 'forum shopping' cases in the region and, inevitably, these will often involve both pre and post nuptial agreements as they become increasingly used and recognised around the world. This is certainly an area practitioners will need to be able to advise upon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.