Prenuptial agreement


A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
In some countries, including the United States, Belgium, and the Netherlands, the prenuptial agreement not only provides for what happens in the event of a divorce but also protects some property during the marriage, for instance in case of bankruptcy. Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in addition to, or in some cases, instead of prenuptial agreements.
Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married. When divorce is imminent, postnuptial agreements are referred to as separation agreements.

Legal recognition

Laws vary between states and countries in what content they may contain and under what conditions and circumstances a prenuptial agreement may be declared unenforceable, such as an agreement signed under fraud, duress, or without adequate disclosure of assets.

Africa

South Africa

In South Africa, a civil marriage or civil union is by default, a marriage in a community of property. To marry out of the community of property, the parties must sign an antenuptial contract in the presence of a notary public before their marriage and the contract must be registered in the Deeds Office within three months from the date of signature of the contract.
When marrying out of the community, the parties have a choice to marry with application of the accrual system or without application of the accrual system.
If the parties marry without accrual, the spouses' respective estates would always remain separate and neither party will have any proprietary claim against the other by the marriage.
If the parties marry with application of the accrual, their respective estates would remain separate during the subsistence of the marriage. Upon dissolution of the marriage, whether by death or divorce, the spouse with the lesser accrual would have a claim against the spouse with the larger accrual for half the difference between their accrual values.

Asia

India

In India, prenuptial agreements are very rare and do not have any governing laws. However, with rising divorce rates, people are showing increasing interest in them. Some lawyers think that prenups don't have legal sanctity in India. However, some form of contract is signed in some cases, usually among affluent citizens. But, the agreements need to be reasonable and not violate pre-existing laws like the Hindu Marriage Act. Indian courts allow a memorandum of settlement to be signed during divorces. But, no court has yet been asked to enforce a prenup.
These agreements may come under the Indian Contract Act of 1872. Section 10 of the Indian Contract Act states that agreements are to be considered contracts if they are made with the free consent of the parties. However, Section 23 of the same act states that a contract may be void if they are immoral or against public policy.
Goa is the only Indian state where a prenuptial is legally enforceable, as it follows the Portuguese Civil Code, of 1867. A prenuptial agreement may be signed between the two parties at the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then the marital property is simply divided equally between the husband and wife.

Hong Kong

Pre and post-nuptial Agreements in Hong Kong can be of “magnetic importance” in deciding the parties’ claims for ancillary relief. The leading case of SPH v SA in Hong Kong’s highest court, the Court of Final Appeal followed the earlier English Supreme Court decision of Radmacher v Granatino. That was perhaps unsurprising as one of the Judges in Radmacher also sat in Hong Kong as an NPJ..

Thailand

The prenuptial agreement in Thailand is concluded by mutual consent of the man and woman who want to marry. Under Thai law, a prenuptial agreement is recognized by the Commercial and Civil Code of Thailand. A valid and enforceable Thai prenuptial agreement legally requires that
  • The content of the prenuptial made in Thailand cannot be against the law or good morals;
  • Both the prospective husband and wife must understand the content of the prenuptial;
  • The prenuptial in Thailand must be made before the marriage, a contract between husband and wife concerning personal and jointly owned property made after the marriage registration is void;
  • Both the future husband and wife must sign the prenuptial in the presence of at least 2 witnesses and the agreement must be entered into the Marriage Register together with the marriage.
These conditions are found in clause 1466 of the Commercial and Civil Code of Thailand.
Following the laws on Thai marriage, the prenuptial agreement mainly relates to assets and financial implications of marriage and establishes conditions of ownership and management of personal and concrete joint property and potential division of marital assets, if the marriage will be dissolved. The prenuptial agreement also includes a list of each side's assets at the time of the marriage and guarantees, that debts and property before the marriage remain in possession of the initial owner or debtor.
Personal property includes:
:
  • property owned by spouses before the marriage;
  • property for personal use — work instruments, clothes, etc.;
  • gifts from third parties or property received through the testament ;
  • "khongman" — real estate transmitted to the bride which is different from a dowry, or sinsod, which is paid to the parents of the bride.
  • a transfer of personal property to another property during marriage will normally remain personal property. Just be careful about real estate as in Thailand, it causes a problem and the conflict of law act explain these.
The joint property includes:
  • property acquired at the time of the marriage;
  • property received by one of the spouses at the time of the marriage as a gift, if in the document attached to a gift or in the document compiled by the spouse, this property was declared as joint ;
  • income acquired from personal property as stated by clause 1474 of the Thai and Commercial Civil Code.

    Europe

Prenuptial agreements have long been recognized as valid in several European countries, such as France, Belgium, the Netherlands, Germany, Poland, Switzerland, Sweden, Denmark, Norway, and Finland. While in some of these countries, there are limits on what restrictions the courts will see as enforceable or valid a written and properly initiated contract, freely agreed upon, cannot be challenged by, for instance, invoking the circumstances under which the marriage broke down or the conduct of either part. In France, The Netherlands, Belgium and Germany prenuptial agreements must be set up in the presence of a notary. A notary in the sense of the germanic or romanic judicial tradition is a law professional tasked with translating the signing parties contractual demands into a legally secure document while also educating both parties about the legal consequences and possible alternatives of their declaration before signing it. The notary does not represent any party and acts as an independent authority.
In many of the countries mentioned, pre-nuptials may also protect the non-shared property and money from being pulled into bankruptcy and can serve to support lawsuits and settlements during the marriage.

Ukraine

Under provisions of Section 10 of the Family Code of Ukraine, marriage relationships, rights, and duties of spouses can be regulated by a marriage contract as well if spouses wish to settle their property relations in another manner than it is provided by the Family Code of Ukraine.
A marriage contract can be concluded by a woman and a man, who applied for registration of their marriage as well as by spouses. An underaged person, who wants to conclude a marriage contract before registration of the marriage, is to have the signed consent of his/her parent or custodian certified by a notary.
Numerous provisions of this section of the Family Code of Ukraine provide quite extensive requirements regarding the form and contents of the marriage contract and the procedural issues of making the same are regulated by appropriate Instruction of the Ministry of Justice of Ukraine regarding the procedure of notarization of marriage contracts as well as far as notarization is required.
Imperative requirements regarding the content of the marriage contract are provided by clause 93 of the Family Code of Ukraine, which states that the marriage contract governs property relations between spouses, and determines their property rights and duties. A marriage contract can also determine the property rights and duties of spouses as parents but with certain limitations. Personal relations of spouses cannot be regulated by the marriage contract, as well as personal relations between spouses and their children. This rule is also provided by clause 93 of the Family Code of Ukraine. Marriage contracts, which reduce the rights of children and put one of the spouses in a poor material state, are not permitted by the above imperative regulation. Within the framework of the marriage contract, none of the spouses can acquire any immovable property or other property, which requires state registration.