Prenuptial Agreements in Vietnam: Are They Enforceable?

Article 28 of the Law on Marriage and Family 2014 establishes that spouses may choose between the statutory property regime (community property — assets acquired during marriage are jointly owned and divided on divorce, with limited recognition of separate property) and an agreed property regime documented in writing before marriage. Articles 47 to 50 set out the form and content requirements for the agreed regime.

Vietnamese law therefore recognises two main forms: a prenuptial agreement (made before marriage, taking effect from the date of marriage) and what is sometimes loosely called a post-nuptial agreement — though the position on post-nuptial modification is more constrained, requiring the agreement to be made by mutual consent and notarised, and not operating retroactively to property already characterised under the statutory regime.

The default — community property — is what applies if no valid agreement is made. Under the default, assets acquired during marriage are jointly owned (regardless of which spouse's income or labour produced them), and on divorce are divided equitably with consideration of contributions, the welfare of children, and the parties' circumstances. Pre-marriage assets remain separate unless converted into joint property. Inheritance and gifts during marriage are separate unless made jointly. Income from separate property during the marriage is generally treated as joint property — a point that often surprises foreign clients.

Article 48 sets out the matters a property-regime agreement can address: identification of separate and joint assets; rights and obligations of the spouses with respect to each category; conditions and procedure for division of joint assets during marriage; and other matters the parties agree are necessary.

What can be agreed: complete separation of property (each spouse retains exclusive ownership of all assets in their name during and after marriage); modified community property (specific categories of assets remain separate, others become joint); treatment of business interests (typically held separate to protect business operations from divorce-related disruption); treatment of pre-marriage assets and any appreciation thereof; treatment of inheritances and gifts; provisions for management of joint assets; and procedures and triggers for division of joint property during the marriage (relevant where business circumstances or estate planning require it).

What cannot be agreed: matters concerning the personal rights and obligations of spouses (Article 50 prohibits agreements that violate the equality principle, the rights and welfare of children, or the rights of third parties to whom support is owed); waiver of statutory child-support obligations; waiver of duty of fidelity and mutual support; provisions that would render one spouse unable to meet basic living expenses; and provisions contrary to Vietnamese public policy.

Foreign-jurisdiction concepts that often do not translate directly: sunset clauses tied to length of marriage (uncertain enforceability under Vietnamese law); aggressive lifestyle clauses (waiver of support if spouse gains weight, etc. — not enforceable); unilateral termination provisions (an agreement cannot generally be terminated by one party without consent of the other); and choice-of-law clauses applying foreign law to assets located in Vietnam (Vietnamese courts apply Vietnamese law to assets in Vietnam regardless of any contrary agreement).

Form requirements under Article 47: the agreement must be in writing, signed by both intending spouses, and notarised or certified before the marriage is registered. Notarisation is performed by a Vietnamese notary public; certification by the relevant local authority is also acceptable.

The agreement must be in Vietnamese (or accompanied by a certified Vietnamese translation if drafted in another language). For international couples where neither party is fully fluent in Vietnamese, the practical approach is: bilingual drafting (Vietnamese and English in parallel columns), certified translation of any non-Vietnamese text, and notarisation in front of a notary who can confirm that both parties understand the content. An interpreter at the notarisation is often used — and the notary will record the interpretation.

Timing: the agreement must be in place before the marriage is registered with the Vietnamese authorities. A prenuptial agreement signed after marriage registration is not a prenuptial agreement under Vietnamese law; it is a post-nuptial modification with the more limited scope discussed below. For couples planning a Vietnamese marriage registration, the practical sequence is: (1) draft and review; (2) notarise the agreement; (3) register the marriage. There should typically be no more than a few weeks between notarisation and registration.

Post-nuptial modification: Article 49 allows spouses to modify the property regime during marriage by written agreement, notarised. The modification operates prospectively — assets already characterised under the previous regime are not retroactively reclassified. Post-nuptial agreements are useful for couples whose circumstances change (a new business, an inheritance, a change in jurisdiction of residence) but are not a substitute for a properly executed prenup.

When a marriage with a valid property-regime agreement ends, the court applies the agreement rather than the statutory community-property rules. The agreement defines what is separate, what is joint, and how the joint property is divided. The court will not lightly set the agreement aside; the burden is on the party seeking to invalidate it to show specific grounds (lack of capacity at signing, fraud, duress, violation of Article 50 prohibitions, or failure of form requirements).

Practical points on enforcement: courts will scrutinise the circumstances of execution — was the agreement signed under apparent free will, did each party have the opportunity for independent legal advice, was full disclosure of assets made, was the agreement notarised properly. Where these elements are clearly evidenced (independent counsel for each side, signed acknowledgments of disclosure, careful notarisation records), the agreement is robust. Where they are absent, challenges become possible.

Even with a valid agreement, child-related matters are not delegated to the agreement. Custody, child support, and the children's welfare are determined by the court applying the best-interests-of-the-child standard regardless of any pre-existing agreement between the spouses. A prenup cannot waive child support or pre-determine custody; it can only address the property dimension.

Where an agreement is silent on specific assets or categories that emerge during the marriage, the statutory community-property regime fills the gap. A common drafting error is to address only the assets that exist at marriage — a thorough agreement addresses categories that may emerge (business interests, intellectual property, retirement entitlements, inherited assets, gifts).

Couples often arrive in Vietnam with a prenuptial agreement executed in another jurisdiction — a US prenup, a UK prenup, a French contrat de mariage, a Japanese agreement. The recognition question for Vietnamese courts is partial. Vietnamese courts will, in principle, give effect to the parties' choice of property regime as expressed in a foreign agreement — for assets located outside Vietnam, and for matters not contrary to Vietnamese public policy.

For assets located in Vietnam (real estate, Vietnamese-incorporated company shares, Vietnamese bank accounts), Vietnamese courts apply Vietnamese law. A foreign prenup that designates Vietnamese real property as the separate property of one spouse will be respected, but its enforcement on divorce will follow Vietnamese procedure. A foreign prenup that purports to apply foreign law to Vietnamese real property will be applied to the extent it does not conflict with Vietnamese mandatory rules.

For substantive provisions that exceed Vietnamese-law limits (broad lifestyle waivers, child-support waivers, unilateral termination), those provisions will be unenforceable in Vietnam regardless of what the foreign agreement says.

For international couples planning to make Vietnam their long-term home, the best practice is twofold: (1) maintain or update a foreign prenup covering assets and arrangements in the home jurisdiction; and (2) execute a Vietnamese-law prenup or post-nuptial agreement covering Vietnamese assets. The two documents should be coordinated to avoid contradiction. I draft both and coordinate with foreign counsel where the home-jurisdiction document is being prepared in parallel.

A well-drafted Vietnamese prenuptial agreement for an international couple addresses the following — each typically warranting its own clause or sub-clause. The document is not boilerplate; it is bespoke to the couple's circumstances and goals, and an off-the-shelf template is inadequate.

The checklist below summarises the elements I typically address. Drafting and execution from initial consultation through notarisation typically takes 4-8 weeks, longer if foreign assets require coordinated treatment. Independent counsel for each prospective spouse is strongly recommended — both to strengthen the agreement against future challenge and because it ensures both parties are protected.