Be prepared in advance: A case for allowing binding prenuptial agreements in Hong Kong

Prenuptial agreements are not unusual in most common law jurisdictions. In fact, law reform has also been proposed in some of the remaining common law jurisdictions which do not recognize prenuptial agreements. Following SPH v SA, a decision from the highest appellate court in Hong Kong in June 2014, Hong Kong courts seems to be willing to give effect to prenuptial agreements. This article seeks to present a case that it is right to recognize and enforce such agreements in Hong Kong, as a sign of respect for private autonomy, and that this is justifiable from a moral and economic perspective. However, such agreements ought not to cover familial matters which are in substantial conflict with the public interest. Further, recognition and enforcement must take into account protection against involuntariness and discrimination. © The Author 2014. Published by Oxford University Press. All rights reserved.