Historically, pre-marital agreements were regarded as being contrary to public policy on the grounds that provision for a divorced wife and children of the family is a matter of public concern. In UK case Bennett v Bennett, the court said that “it is in the public interest that the wife and children of a divorced husband should not be left dependent on public assistance or on charity when he has the means to support them”.
For example, if a party had not given full and frank disclosure before the signing of the pre-marital agreement and the wife is left destitute under the agreement, the agreement may be contrary to public policy. Another example might be that since the marriage, the parties' financial situations may have drastically changed (for the better or worse), thus what was initially agreed under the pre-marital agreement might not be “fair” or reflective of the parties’ living standard during the marriage.
Later, the UK court in the Radmachner case stated that pre-marital agreements are not contrary to public policy. However, this view is just of persuasive value in Hong Kong. Furthermore, pre-marital agreements cannot restrict parties from applying to the court for orders for financial arrangements.
In 2011, the Hong Kong court briefly acknowledged the Radmacher case, and stated an observation of the modern trend of nuptial agreements being recognized. However, Radmacher is not binding in law in Hong Kong. Until the Courts in Hong Kong or the legislature fully accept the binding effect of nuptial agreements, nuptial agreements, other than separation agreements, will continue not to be binding in a court of law. Nevertheless, the UK decisions have provided Hong Kong courts with some guidance on the status of nuptial agreements when determining ancillary relief and asset division in matrimonial matters