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The Reason for a Prenuptial Agreement

Presently, an increasing number of couples enter into a prenuptial agreement. Are you aware of its purpose and of what it may contain?

Žena podepisující předmanželskou smlouvu
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What may be subject to a prenuptial agreement?

The Czech law doesn’t actually recognize the term prenuptial agreement; nonetheless, it’s commonly used to regulate the future property regime of the betrothed. In a prenuptial agreement, the partners can negotiate whether they will have matrimonial property after the wedding, what will be a part of it, or whether they will keep their property separate. A prenuptial agreement only concerns property and cannot appoint, e.g., which parent will have sole custody of the children after the eventual divorce, or how much child support the other parent will pay.

Tip: To marry or not? What are the legal differences between marriage and cohabitation?

Matrimonial or separate property?

As far as property is concerned, two regimes exist:

Matrimonial property, also referred to as marital property or community property – any married couple who didn’t sign a prenuptial agreement prior to the wedding automatically enters into this regime upon marriage. Any property they acquire after the wedding (for example, anything they buy separately or together) falls under marital property, as do debts. However, several exceptions exist:

  • Personal possessions,
  • Property inherited or received as a gift,
  • Substantial loans taken by one of the spouses without the consent of the other.
  • Reduced or eliminated matrimonial property regime – if an engaged or married couple decides to modify or eliminate matrimonial property, they may enter into an agreement. If it’s a betrothed couple who signs it, we refer to a prenuptial agreement.
Snoubenci s vyřešenou předmanželskou smlouvou
An engaged couple after signing a prenuptial agreement

Variants of a prenuptial agreement

As mentioned, the prenuptial agreement modifies the property regime of a married couple. It comes in four variants:

  • Eliminating marital property altogether – both you and your spouse will keep your property and debts separate. If you purchase a flat together, you’ll own it in a proportionately joint regime.
  • The second variant postpones the formation of community property to the day the marriage is terminated. In this regime, you’ll both “acquire on your own” and may treat any obtained property in any way they deem suitable until the marriage ends. Only upon termination of the marriage (by divorce or the death of a spouse) does everything the couple acquired fall under community property and need to be settled. This variant isn’t seen much in practice.

The last two variants allow the couple to exclude from or include something to their matrimonial property. i.e., the community property may be reduced or extended. To illustrate, if one of the couple purchases a house before the wedding and the other intends to invest money in it during the marriage, they may agree that the house will count as marital property.

Your Attorneys Online advise: We recommend a prenuptial agreement to any person who isn’t well-informed about their future spouse’s financial situation or suspect they may be indebted, as well as to those who have children from their previous relationship. In practice, we frequently encounter clients who merely wish to sign a prenuptial agreement because they want to handle their property and finances in a way that circumvents the law.

Are you unsure whether or not a prenuptial agreement would be to your advantage?

Or are you already married and seek to separate your property? We’re prepared to answer any questions about prenuptial or postnuptial agreements.

How to draft a prenuptial agreement

As the prenuptial agreement comes in the form of a notarial record, visiting a notary before the wedding is necessary. It doesn’t matter whether you sign it a year or a week before the wedding, as the agreement comes into force on the day of the marriage.

You may ask the notary to add your agreement to the List of Matrimonial Property Agreements. It’s optional, but might prove itself useful – you won’t need to provide an agreement for each loan or distraint. Both the bank and bailiff must be familiar with the information on the List. For example, if you eliminate your matrimonial property and your spouse comes under distraint, the bailiff must check whether your agreement is on the List.

The price of a prenuptial agreement:

  • For an agreement that doesn’t deal with any particular property and only negotiates the property regime in general, the notary will charge you about 3,000 CZK plus VAT.
  • When dealing with particular property, the notarial fee is calculated as a portion of the property’s appraised value.
  • If you wish to have your agreement on the List of Matrimonial Property Agreements, be prepared to pay an additional 400 CZK plus VAT.

Is it possible to sign a prenuptial agreement after the wedding?

Yes, it’s then called a postnuptial agreement. Bear in mind, however, that it’s always valid from the date in the document, i.e., it may not be back-dated to exclude the spouse’s debts from marital property. If the debts were incurred prior to the agreement, they count as community property.

Prenuptial agreement and debts

The previous paragraph brought us conveniently to the main reason for entering into a prenuptial agreement. Some people who have gone through a divorce want to prevent disputes over property and therefore opt for a separate property regime to gain more independence and to make the eventual divorce settlement smoother.

Others seek to preserve their property for the children from their previous marriage. Truthfully though, most betrothed couples sign a prenuptial agreement to protect themselves from the debts of their future spouse. Especially if one of the couple is already indebted or intends to start a business, it’s highly advisable for them to enter into a prenuptial agreement, thus protecting their spouse from the bailiff.

On the other hand, a prenuptial agreement may seem unimportant when neither of the engaged couple owns much property (or doesn’t mind sharing it) and neither intends to start a risky business or take a large loan.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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