Prenuptial agreement - what is it, what is it for, pros and cons, who can conclude?

Many his­to­ri­ans say that a mar­riage con­tract was not uncom­mon in noble hous­es hun­dreds of years ago. In the mod­ern world, this type of agree­ment is becom­ing more and more pop­u­lar among spous­es and those peo­ple who are just about to join the knot. How­ev­er, not every­one ful­ly under­stands the fea­tures and nuances of such a doc­u­ment.

What is a prenuptial agreement?

In world leg­is­la­tion, as well as in the reg­u­la­to­ry legal acts of many coun­tries, it is rec­og­nized that a mar­riage con­tract is a legal agree­ment between peo­ple who offi­cial­ly unite them­selves by mar­riage, which deter­mines the prop­er­ty rela­tions of spous­es dur­ing their life togeth­er and in the event of a divorce. In the world there are dif­fer­ent atti­tudes of peo­ple to such for­mal­i­ties:

  1. In Anglo-Sax­on legal prac­tice, such agree­ments were com­mon in the last cen­tu­ry and were con­sid­ered an absolute norm that pro­tects the prop­er­ty rights of peo­ple who love each oth­er.
  2. In the post-Sovi­et space, peo­ple learned about such an agree­ment only in the mid-1990s. Many per­ceived him neg­a­tive­ly through the prism of bad luck or the con­clu­sion of an alliance of con­ve­nience. How­ev­er, nowa­days more and more fam­i­lies, for a num­ber of rea­sons, have begun to con­clude a mar­riage con­tract and con­sid­er it a com­plete­ly log­i­cal part of fam­i­ly life.
what is a prenuptial agreement

Why is a prenuptial agreement necessary?

Explain­ing why a prenup­tial agree­ment is need­ed, lawyers high­light the fol­low­ing func­tions:

  1. Deter­min­ing the mode of own­er­ship of exist­ing or pos­si­ble future joint prop­er­ty: com­mon, shared or sep­a­rate after mar­riage and in the event of its dis­so­lu­tion.
  2. Pre­lim­i­nary deci­sion on the divi­sion of prop­er­ty in the event of divorce.
  3. Solv­ing oth­er prop­er­ty issues. For exam­ple, the con­tract may pre­scribe the amount of mate­r­i­al main­te­nance that one of the spous­es is oblig­ed to pay to the oth­er dur­ing joint life or after its ter­mi­na­tion.
Why is a prenuptial agreement necessary?

Pros and cons of a prenuptial agreement

When a cou­ple turns to a notary to sign a mar­i­tal con­tract, a com­pe­tent spe­cial­ist must explain to each of the part­ners all the advan­tages and dis­ad­van­tages of such a doc­u­ment. The main advan­tages of a prenup­tial agree­ment:

  1. Such a doc­u­ment deter­mines in advance the prop­er­ty rights and oblig­a­tions of both par­ties, relat­ing to both already acquired and future sav­ings.
  2. After sign­ing the con­tract, quar­rels and lit­i­ga­tion on prop­er­ty issues can be avoid­ed when the union is dis­solved.
  3. For many peo­ple, such a doc­u­ment serves as a reminder of what awaits them in the event of con­stant quar­rels or betray­als, and pro­tects them from com­mit­ting rash acts.

Of the minus­es of the doc­u­ment can be iden­ti­fied:

  1. The neg­a­tive atti­tude of a large part of the pop­u­la­tion towards such agree­ments. Peo­ple con­sid­er the con­tract a sign of a lack of love in a cou­ple.
  2. The pos­si­bil­i­ty of set­tling only prop­er­ty rela­tions between spous­es.
  3. The need to pay for the ser­vices of a notary pub­lic for the prepa­ra­tion and cer­ti­fi­ca­tion of a doc­u­ment.
  4. Pos­si­ble require­ments for chang­ing the con­tract in case of amend­ments to the reg­u­la­to­ry legal acts of the state.
  5. If the word­ing in the doc­u­ment is vague, then in the event of a divorce, seri­ous dis­putes between for­mer lovers can arise.
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Who can enter into a marriage contract?

Hav­ing clar­i­fied in detail what a mar­riage con­tract is, it is worth dwelling more specif­i­cal­ly on who can con­clude it. Accord­ing to exist­ing laws, sig­na­tures on such a doc­u­ment can be put by:

  1. Capa­ble peo­ple over the age of 18 who are just about to for­mal­ize their rela­tion­ship or are already legal­ly mar­ried. In most coun­tries it is only a man and a woman.
  2. The main cri­te­ri­on of legal­i­ty is the legal capac­i­ty of those wish­ing to draw up a doc­u­ment, the prin­ci­ples of which are spelled out in the Civ­il Code.
  3. Age (for per­sons over 18), finan­cial sit­u­a­tion, edu­ca­tion and oth­er social cri­te­ria do not affect the right to draw up a con­tract.
who can enter into a marriage contract

When can a prenuptial agreement be concluded?

Not all the towns­folk under­stand when a mar­riage con­tract is con­clud­ed. Accord­ing to lawyers, such a doc­u­ment is valid only after peo­ple for­mal­ize their union in the reg­istry office. That is, those who cohab­it with­out a stamp in their pass­port can­not offi­cial­ly divide their own or joint­ly acquired prop­er­ty with this form of agree­ment.

For legal spous­es, the exe­cu­tion of a mar­riage con­tract is pos­si­ble:

  1. Before the wed­ding, then the doc­u­ment will enter into force on the day the pass­port is stamped.
  2. Dur­ing the peri­od of joint life. The mar­riage con­tract is then valid from the date of its offi­cial sign­ing.

Where is the marriage contract concluded?

Accord­ing to the norms of the leg­is­la­tion of many coun­tries, the con­clu­sion of a mar­riage con­tract is pos­si­ble only with the par­tic­i­pa­tion of a notary who has a license to car­ry out his pro­fes­sion­al activ­i­ties. That is, a man and a woman can:

  1. Inde­pen­dent­ly find and fill out a stan­dard doc­u­ment, hav­ing approved it with a notary pub­lic with the cor­rect spelling of all points.
  2. Get the help of a lawyer, and then doc­u­ment the sign­ing with a notary.
  3. Draw up a doc­u­ment direct­ly in the notary’s office, sup­ple­ment­ing it with a seal and sig­na­ture.

The content of the marriage contract

Lawyers draw spe­cial atten­tion to the fact that it is pos­si­ble to pre­scribe only the prop­er­ty con­di­tions for con­clud­ing a mar­riage con­tract, if the spous­es are not sat­is­fied with their reg­u­la­tion by the usu­al regime of joint prop­er­ty of the state. How­ev­er, experts say that there is no stan­dard form of a mar­riage con­tract in the leg­is­la­tion. Such a doc­u­ment may include:

  1. The order of own­er­ship of prop­er­ty that was acquired by each of the spous­es before mar­riage.
  2. Dis­po­si­tion of joint prop­er­ty.
  3. Cred­it and finan­cial oblig­a­tions of the par­ties to each oth­er.
  4. Con­di­tions for the divi­sion of busi­ness, both exist­ing and future.
  5. Prop­er­ty rights of chil­dren that already exist or are planned and more.
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contents of the marriage contract

What conditions can be included in a prenuptial agreement?

The main con­di­tions of the mar­riage con­tract have already been giv­en above, which are pre­scribed by the spous­es with the assis­tance and ver­i­fi­ca­tion of a notary. The doc­u­ment can include:

  1. Rules for the divi­sion of prop­er­ty in the event of a divorce.
  2. The pro­ce­dure for incur­ring fam­i­ly expens­es with a sep­a­rate bud­get.
  3. Divorce ben­e­fits for one or both spous­es.
  4. Cer­tain peri­ods or the occur­rence (not the occur­rence) of spe­cif­ic cir­cum­stances under which a mar­riage or mat­ri­mo­ni­al con­tract may come into force.

What can not be written in a prenuptial agreement?

Giv­en the com­plex­i­ty and ver­sa­til­i­ty of fam­i­ly rela­tion­ships, a legal agree­ment between spous­es is not capa­ble of defin­ing their entire spec­trum. Accord­ing to the law, such a con­tract can­not:

  1. Lim­it the legal capac­i­ty and capac­i­ty of one or both part­ners.
  2. For­bid a hus­band or wife to go to court to pro­tect their legit­i­mate inter­ests.
  3. Lim­it non-prop­er­ty rights and oblig­a­tions of spous­es in rela­tion to chil­dren.
  4. Con­tain claus­es accord­ing to which the dis­abled spouse does not have the right to mate­r­i­al main­te­nance.
  5. Include oth­er con­di­tions that put one part­ner in an absolute­ly dis­ad­van­ta­geous posi­tion or con­tra­dict the norms of exist­ing leg­is­la­tion.

How to conclude a marriage contract?

Accord­ing to the norms of the Fam­i­ly and Civ­il Code, the prepa­ra­tion of a mar­riage con­tract is con­sid­ered a bilat­er­al trans­ac­tion, the con­clu­sion of which is pos­si­ble:

  1. Only in writ­ing. It is impos­si­ble to ver­bal­ly draw up a mar­riage or mat­ri­mo­ni­al con­tract even in the pres­ence of wit­ness­es.
  2. The text of the doc­u­ment can be com­piled inde­pen­dent­ly, hav­ing a stan­dard sam­ple, or you can seek help from a lawyer. Such a ser­vice is not con­sid­ered typ­i­cal, from which its cost may vary in dif­fer­ent regions.
  3. The fin­ished doc­u­ment must be cer­ti­fied by a notary. Before that, a fee is paid.
  4. The notary checks the legal­i­ty of the word­ing of all points of the doc­u­ment, reads the doc­u­ment aloud, explains to the spous­es their rights and oblig­a­tions, the mean­ing of all points of the doc­u­ment and their legal con­se­quences.

What documents are needed for a marriage contract?

The law does not pre­scribe all the spe­cif­ic fea­tures of each mar­riage con­tract, there­fore the list of doc­u­ments required for its cer­ti­fi­ca­tion may vary. The stan­dard pack­age may include:

  1. Doc­u­ments prov­ing the iden­ti­ty of the hus­band and wife. It can be a pass­port, mil­i­tary ID and oth­ers.
  2. Mar­riage reg­is­tra­tion cer­tifi­cate, if already con­clud­ed.
  3. Papers cer­ti­fy­ing the own­er­ship of the spouse or spous­es to real estate. You can pro­vide a cadas­tral pass­port of the premis­es, an extract from the USRR and oth­ers.
  4. Doc­u­ments on the own­er­ship of the trans­port, if its sec­tion is also includ­ed in the list.
  5. Birth cer­tifi­cates of chil­dren.
  6. Cred­it agree­ments.
  7. Alimo­ny agree­ment.
  8. Cer­tifi­cates and income of spous­es and oth­ers.
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The term of the marriage contract

In com­mon world prac­tice, a mar­riage con­tract is drawn up for:

  1. Indef­i­nite term, but ter­mi­nates upon dis­so­lu­tion of mar­riage, unless oth­er­wise spec­i­fied.
  2. The par­ties can inde­pen­dent­ly deter­mine the peri­od of valid­i­ty of the doc­u­ment or its indi­vid­ual claus­es, lim­it­ing it to a spe­cif­ic date or the occur­rence of cer­tain cir­cum­stances, for exam­ple, the birth of chil­dren.

Can a prenuptial agreement be contested?

Life sit­u­a­tions can change great­ly, which makes it nec­es­sary to chal­lenge the agree­ment of per­sons enter­ing into mar­riage. This can be done by one of the par­ties in a judi­cial pro­ceed­ing. How­ev­er, this will not suc­ceed if a per­son sim­ply does not want to ful­fill pre­vi­ous­ly signed agree­ments. The court can grant the claim only if one of the fol­low­ing rea­sons exists:

  1. At the con­clu­sion of the trans­ac­tion, one of the par­ties was not aware of his actions: he was inca­pac­i­tat­ed, was in a state of alco­holic or drug intox­i­ca­tion, and ner­vous stress.
  2. If dur­ing the sign­ing process there was pres­sure, vio­lence or threats from one of the spous­es, then there are those actions that inter­fered with the free expres­sion of will.
  3. One of the par­ties was in error regard­ing the prop­er­ty con­se­quences of the trans­ac­tion.
  4. The agree­ment delib­er­ate­ly put one of the par­ties in an extreme­ly dis­ad­van­ta­geous posi­tion.
Can a prenuptial agreement be contested?

Recognition of the marriage contract as invalid

In addi­tion to ter­mi­na­tion in civ­il pro­ceed­ings, there is the con­cept of nul­li­ty or inva­lid­i­ty of the mar­riage con­tract. A con­tract may be rec­og­nized as such in whole or in part only by a court deci­sion for one of the fol­low­ing rea­sons:

  1. The notary’s sig­na­ture is miss­ing or invalid on the doc­u­ment.
  2. The papers were signed by a per­son who was rec­og­nized as incom­pe­tent at the time of the trans­ac­tion.
  3. The text of the doc­u­ment con­tra­dicts the basic laws of the state, rec­og­niz­ing the rights and free­doms of spous­es or one of them.
  4. The doc­u­ment is feigned, for exam­ple, to make anoth­er trans­ac­tion, or imag­i­nary, for exam­ple, when the prop­er­ty is under threat of seizure.

How to terminate a marriage contract?

The pro­ce­dure for ter­mi­nat­ing a mar­riage con­tract may con­sist of the fol­low­ing steps:

  1. It is the respon­si­bil­i­ty of either par­ty to ensure that there are valid grounds for ter­mi­na­tion. Often, for this, peo­ple turn to a com­pe­tent lawyer who helps to col­lect evi­dence and leads the entire fur­ther course of lit­i­ga­tion.
  2. Col­lect­ing sup­port­ing doc­u­ments.
  3. The spouse sub­mits a state­ment of claim in the estab­lished form to the world or dis­trict court at the place of res­i­dence, attach the nec­es­sary pack­age of doc­u­ments.
  4. The tri­al begins, in which the par­ties or their rep­re­sen­ta­tives must par­tic­i­pate in court hear­ings.
  5. After the com­ple­tion of the pro­ceed­ings, the court makes its deci­sion to ter­mi­nate the con­tract or to refuse to can­cel the doc­u­ment.