When is a prenuptial agreement worthwhile?

What can be regulated by a prenuptial agreement?

Although the law does not define the term prenuptial agreement, this term is quite commonly used to regulate the future property regime after marriage. Unfortunately, it sometimes has the reputation of being a destroyer of romance or a symbol of distrust between future spouses (who allegedly contemplate divorce at the same time as getting married). But the reality can be exactly the opposite.

Although a marriage contract is a rather pragmatic step, it can in principle be recommended to fiancés, and not only in the case of the expected greater wealth or business of one of the partners.

In this agreement, the partners can therefore regulate whether they will have joint property as spouses and what will belong to it, or whether they will have completely separate property. However, it really only concerns property. It cannot regulate, for example, who gets the children after the divorce or who pays what maintenance.

A prenuptial agreement cannot therefore be seen as something negative that breaks the bond between the spouses. It is an important step for those who want to deal with finances and property in a different way than the law requires. What matters is its content and whether there is mutual agreement on it.

Marriage contract options

As we have said, a prenuptial agreement changes the legal matrimonial property regime. It can change it by one of four options:

• A separate property regime, where you will each continue to have your own assets and your own debts after marriage. When you buy a home together, you will own it jointly with designated shares.
• Defer the creation of community property to the date of dissolution of the marriage – if you choose this regime, you will each acquire property “on your own” throughout the marriage and you can dispose of these items on your own until the marriage is dissolved. Only when the marriage is divorced or dissolved, for example by the death of one of the spouses, will everything acquired during the marriage fall into the community property and this must be settled according to what is “left over” at the end of the marriage. This possibility is rather theoretical and is not often encountered in practice.
• Reduction of the matrimonial property – it may be worthwhile if you suspect or are unaware of the fiancé’s unresolved financial situation, or if the other spouse runs a business and guarantees any debts from the business with his or her assets.
• Extending the community property to include assets that are not normally included under the law – typically assets acquired by either partner before the marriage. This is worthwhile, for example, if one of the partners buys a house before the wedding that the other spouse wants to invest in after the wedding. They can then agree that the house will be included in the community property.

In some cases, however, the scheme deviating from the law does not pay off and the situation becomes unnecessarily complicated. However, it is not the amount of the property as such that is decisive, but rather how it was acquired, how it is further disposed of and who disposes of it. It is therefore always advisable to consult a solicitor about the merits or demerits of a property arrangement.

There are two main categories when it comes to matrimonial property:

1. Contractual property regime – if the spouses decide that they do not want to have community property or want to modify it in a certain way, they can enter into a contract to that effect. The spouses should agree and determine in the marriage contract which of them will manage the matrimonial property. Thus, for example, the consent of the other partner is always required for contracts and other matters concerning property. Alternatively, that only one specific partner always makes decisions, or that each partner can act alone on the property without the other partner’s consent (which is not possible in the normal SJM regime, e.g. for real estate). If one of the spouses is authorised by agreement to administer the community property, he or she may also act independently, for example in court or other proceedings. In such a case, the consent of the other spouse is only required when dealing with the community property as a whole, when dealing with the common dwelling or when arranging for a permanent encumbrance on the property.
2. Court-ordered arrangements – not a very common option. It may arise as a result of a court decision on the application of one of the spouses if there is a compelling reason for it.
3. Community property – the so-called statutory property regime is enjoyed by all those spouses who are married and have not entered into any contract. This creates community of property, which includes all property acquired by the spouses after the marriage (for example, what one or both of them bought together), but also includes debts incurred (for example, a loan from one or both of the spouses). However, there are a few exceptions to SJM.

The community property does not include:

• personal property – i.e. if the man bought an expensive designer watch with joint money and the woman bought a piece of jewellery,
• property acquired by inheritance and gift – e.g. real estate acquired from the parents of one of the spouses,
• large loans from one spouse that the other spouse did not agree to.

What cannot be written in a prenuptial agreement

As mentioned above, the agreement may only relate to property. Anyobligations, promises or conditions of a non-property nature are prohibited. If one of the partners wants to use the agreement to arrange hot dinners or regular holidays by the sea, he or she is out of luck. Of course, the contract must not contravene the law, even in cases involving property. For example, a contract cannot abrogate the maintenance obligation towards the children.

How to draw up a marriage contract?

A prenuptial agreement must be in the form of a notarial deed. However, if a visit to a notary discourages you from signing a contract, you can also use the services of a lawyer, where you can not only consult whether a prenuptial agreement is suitable for you and in what form, but you will also receive a draft contract and everything will be discussed with the notary. In any case, the contract will only come into force when you get married.

You can have the contract entered by the notary in the List of Marital Property Agreements. This is not compulsory, but it is advantageous – you do not have to present the contract with every loan or foreclosure. Both the bank and the bailiff have to check the information from the List. So if you have separate property and your spouse is in foreclosure, the bailiff is obliged to check the List to see if you have a prenuptial agreement listed there.

Can a prenuptial agreement be negotiated during the marriage?

Yes, which is why it is sometimes called a marriage contract. However, in this case, the term back in time may not be used with the intention of covering the partner’s debts from the date that will be indicated on the document. If they were incurred before the agreement was made, the debts are joint.

Pre-nuptial agreement and debts

Debts (whether current or anticipated) are one of the most common reasons for entering into a prenuptial agreement. It can effectively protect against their effects.

Summary