An Empirical Study On The Legal Effect Of Prenuptial Agreement

Prenuptial agreements are the products of economic development and individualism.In recent years,prenuptial agreements between couples have become more common.The prenuptial agreement can help the couple to treat the marriage relationship more rationally and prudently,and at the same time,it can also better protect the legal interests of the parties to the marriage.At present,there are no specific legal provisions on prenuptial agreement in China,so there are disputes on the validity of prenuptial agreement in practice,and the factors affecting the validity of prenuptial agreement are also relatively complicated.From the perspective of law,the essence of marriage contract is contract.One of the theoretical issues behind the dispute over the validity of prenuptial agreement is the conflict between familism and individualism.If we only consider the property agreement in prenuptial agreement,it is the conflict between the community property system of husband and wife and the property contract system of husband and wife.China's marriage law has too general provisions on prenuptial agreement,and there is no limitation on the scope and form of prenuptial agreement in the United States,Germany and other countries.Therefore,in practice,there is too much space for the husband and wife to draw up a prenuptial agreement,which leads to the validity or defects of the prenuptial agreement when it is really needed to apply the prenuptial agreement,that is,when the marriage relationship ends.This has also contributed to the court's premarital agreement to determine the effectiveness of the problem.From the legislative point of view,several amendments to the marriage law of our country can be seen that the attitude of the legislative level towards the prenuptial agreement presents a change trend from the family doctrine to the individualism.From the academic discussion,there are two different voices: one is that the concept of "home" cannot be abandoned,the formulation of marriage system and the determination of related issues of prenuptial agreement should still take family as the core;the other is that prenuptial agreement should fully respect the wishes of both husband and wife,and respect the principle of contract autonomy.Through the existing pre-nuptial agreement related cases of quantitative research and typical case analysis can be analyzed at this stage of judicial practice in China to determine the effectiveness of pre-nuptial agreement of the main factors.The factors that influence the validity of prenuptial agreement include the cause of the case,the nature of the agreement and the sex of the agreement.Generally speaking,in the cases involving prenuptial agreement,such as civil loan disputes,inheritance disputes,divorce disputes,there are differences in the probability of the validity of prenuptial agreement.When the nature of prenuptial agreement is only a simple property agreement,as long as it is in line with the core socialist values,in line with public order and good customs,and does not violate the law,the court is usually more inclined to respect the autonomy of the contract and recognize the validity of the prenuptial agreement.When the nature of prenuptial agreement is non-property agreement,the validity of the agreement needs to consider many factors,can not be generalized.This empirical study shows that there is a large gap between practice and legislative intention in the legal effect determination of prenuptial agreement in China,which needs to be bridged through the continuous cooperation of legislation and judicatory.Empirical research shows that China's justice is moving towards individualism in a limited rather than unrestrained way.This trend reflects a step-bystep legal strategy.However,a strong institutional breakthrough needs to be reformed.