Marriage agreement. Does it “solve everything”?

A prenuptial agreement is a contract between spouses that outlines their property rights and obligations during the marriage, upon divorce, or during separation.

The core function of a marriage contract is to allow the parties to determine, at their discretion, a legal regime for their property that differs from the default provisions set by law. The contract can also define other matrimonial property rights, subject to mutual agreement between the spouses.

A marriage contract may be established:

• BEFORE MARRIAGE (prenuptial agreement), which becomes effective only after the marriage.

• AFTER MARRIAGE, serving as a marital agreement once executed.

For the contract to be valid, it must be notarized and registered in the Register of Marriage Contracts. The agreement is binding from the moment of signing, or from any future date mutually agreed by the spouses.

The marriage contract may stipulate that:

Property acquired both before and during the marriage remains the personal property of each spouse.

Property acquired before the marriage becomes community property upon marriage.

Property acquired after the marriage is considered community property.

If the contract defines property acquired after marriage as community property, it must specify the shares in which the spouses acquire such property, or provide clear rules for determining the shares.

The marriage contract can regulate the legal status of both existing and future assets. Spouses may agree on a legal regime for all or part of the property, or even adopt a mixed regime.

For example: spouses may agree that income earned after marriage remains separate property, while immovable property will be community property.

However, a marriage contract may not:

Restrict the spouses’ legal capacity.

Regulate personal non-property relations between spouses.

Modify personal rights and obligations towards children.

Limit or remove the right to maintenance.

Exclude the right to seek judicial recourse.

Alter the conditions of property succession.

Can a marriage contract include special provisions for property division in case of divorce if one spouse is found to be unfaithful?

No. Issues of fidelity or infidelity fall under personal, non-pecuniary relations. Therefore, any clause regarding such matters would be void in a marriage contract.

For any further questions on divorce, property division, child-related matters, or other family law issues, feel free to reach out at info@prevence.legal.