What is a prenuptial agreement and what are its consequences?<

Although the law does not know the concept of prenuptial agreement as such, the legal regulation in this area knows the concept of the so-called contracted regime of joint property of spouses. This can, of course, also include a prenuptial agreement, which usually establishes this contractual regime of matrimonial property law. The legal regulation of matrimonial property law is contained in the Civil Code. So, from a practical point of view, let's take a closer look at the conditions and consequences of concluding a prenuptial agreement.

Contractual regime and prenuptial agreement

As far as spouses' property is concerned, we can distinguish three basic regimes. The first is the so-called legal property regime, which you have in case you have not concluded any contract. The joint property of the spouses is automatically created there by law. The second is a regime established by a court decision, which is less frequent and arises as a result of a court decision at the request of one of the spouses, if there is a serious reason for it. The third property regime is a contractual regime, which is established by signing a well-known prenuptial agreement.

If you decide that you do not want to have the joint property of the spouses under the standard legal regime, or if you want to adapt this legal regime (usually its scope or administration) to your own needs in some way, you can enter into a contract and negotiate deviations from the legal regime.

The prenuptial agreement of the spouses to the marital property regime does not take effect until the marriage. If the contract also concerns existing items entered in the public list (eg real estate registered in the real estate cadastre), it is possible to make a change in this list only after the marriage has been concluded.

How to write a contract?

A prenuptial agreement requires the form of a notarial deed and it is possible to arrange, for example, a regime of completely separate assets. In such a case, the joint property of the spouses will not arise at all and after the wedding you will each have your own property and your own debts.

This form is usually used in cases where one partner already has significantly more property than the other partner before the marriage and wants to prevent the legal regime of joint property of the spouses from automatically creating after the marriage and the spouses subsequently acquire property together.

If the prenuptial agreement establishes a system of separate estates only during the marriage, the existing joint property of the spouses must be settled at the same time. Of course, there is nothing to prevent the common property regime from being returned to the statutory regime during the marriage, or only certain specific things (eg real estate) are excluded from the statutory regime.

The contract may contain anything that is not prohibited by law

The prenuptial agreement may contain any arrangement and cover any thing, if prohibited by law, such as the scope of the joint property regime, individual things or their files.

Your property relations can be adjusted by a prenuptial agreement in the event of the dissolution of the marriage. However, the contract of marital property must not preclude the husband's ability to provide for the family. In this case, it is mainly a matter of maintaining the husband's ability to provide maintenance to individual family members and to contribute to the needs of the family household. If this is explicitly agreed, the prenuptial agreement is entered in the public list (so-called registration of documents of the marital property regime).

Asset management in the agreed mode

As spouses or spouses, you should agree on a prenuptial agreement and determine which of you will manage the spouses' joint property. The administration of the joint property of the spouses under the contracted regime is generally set as an exception to the statutory regime. Thus, for example, in a prenuptial agreement, it may be provided, by way of derogation from the standard legal regime, that each of the spouses acts on their own property without the consent of the other spouse. Ato ive things that are not common (such as disposing of property).

On the contrary, it may also be agreed that the consent of the other party will be required in very normal matters. In the contract, of course, there can also be a transfer of property management to only one account.

Most importantly, agree on how it will be in practice

Last but not least, the content of the contract should show how the administration is to be carried out. The specific settings and management rules should be specified in the contract in as much detail as possible. As a rule, the administration of the joint property of the spouses under the contracted regime will not differ fundamentally from the administration of the statutory regime, especially with regard to the use of things belonging to the joint property of the spouses, taking the fruits and benefits of these things, maintaining, handling and managing them, etc.

Legal administration is based on the fact that you manage the property together, both, or only one of them - according to the agreement, which will be typical for a contracted regime. The question is whether it is possible for spouses or fiancés to contractually agree that someone else will exercise their rights or perform their duties on their behalf. However, the detriment of the law rather implies that some administration (or both together) should be entrusted with the administration.

The spouse, who is entitled to administer the joint property according to the agreement, may independently act in matters relating to the joint property, either in court or other proceedings. The consent of the other spouse is required only when dealing with the common property as a whole or when dealing with the common dwelling, as well as when arranging a permanent encumbrance of the property (eg a lien or encumbrance).

The consent of the other spouse according to the previous sentence is of course required only if the things in question (eg dwellings or real estate) are part of the joint property and there is no other agreement or arrangement in this respect in the prenuptial agreement.

Conclusion

The main reason for concluding a prenuptial agreement is most often the need to prevent future property disputes or protection against the debts of the other spouse or spouse. In particular, if one of the spouses already has significant debts, it is entirely appropriate for a prenuptial agreement (eg a separate property regime) to be concluded before the marriage, as the other spouses will be protected in the event of execution. Conversely, in cases where neither spouse has significant assets and neither of them has the intention of entering into a risky business or borrowing headlessly, a prenuptial agreement may be somewhat unnecessary.