Entering family life, couples are increasingly resorting to the preparation of such a document as a marriage contract. The pros and cons of such a decision are not always obvious, and therefore you need to approach this issue as responsibly as possible.
What it is
A prenuptial agreement (contract) is a notarized document in which spouses legally determine property relations. At the moment, no regulatory act spells out a clear list of points, and therefore, in the process of execution and further consideration, there are many controversial issues.
The issue of prenuptial agreement is regulated by several legislative acts:
- Since the document defines the relationship of the spouses, it is natural that it is regulated by the norms of the Family Code (chapter 8).
- Since the document defines the relationship, mainly in the property sphere, the 29th chapter of the Civil Code is involved here.
- In terms of notarization of a marriage contract, the provisions of the Tax Code apply.
Positive sides
Many people have a negative attitude to such a thing as a marriage contract. Its pros and cons are not even considered, because it is believed that such documents destroy the sincerity of family relationships. Nevertheless, if you look at the contract through the eyes of lawyers, you can highlight such positive points:
- Shares of property that spouses can apply for in case of a divorce are registered. So, in the event of the dissolution of the marriage, often the parties begin to claim for certain material goods, which rightfully do not belong to them. The presence of such an agreement eliminates the need for lengthy litigation.
- The contract defines not only abstract shares, but also clear boundaries of the division of property. For example, household appliances go to the husband, furniture to the wife, and the apartment is subject to sale and the division of funds in half.
- The agreement prescribes in advance the rights and obligations of parents regarding the determination of the place of residence of minor children, the procedure for communicating with them and material support. The amount of the maintenance of one of the spouses may also be established if he or she loses his ability to work during the marriage.
- A prenuptial agreement is not limited only to the relationship of the spouses. It may include obligations regarding third parties (e.g. parents). Moreover, not only issues of financial assistance can be spelled out here, but also moments regarding joint or separate living.
- A marriage contract can be concluded not only before marriage, but also in the process of family life. Thus, you can protect yourself from controversial issues at any time.
Negative sides
In Western practice of family law, a phenomenon such as a marriage contract is widespread. The pros and cons of this phenomenon should be thoroughly studied, because there are some pitfalls. The negative sides of the marriage contract are the following:
- It is not permissible to use wording in the past tense in the contract. It begins to operate only from the moment when it was notarized or from the date prescribed in the document.
- There is no guarantee that both spouses signed the document voluntarily. There are known cases of coercion, which cannot always be proved in court.
- It is impossible to foresee in the contract all conflict situations that may arise at the time of the divorce.And the introduction of any changes to the document is subject to state duty.
- Family legislation is constantly changing, and therefore it is possible that at some point the conditions of the marriage contract will cease to comply with the standards.
- The contract may be declared invalid if it is proved in court that at the time of signing the document one of the spouses was legally incompetent.
Who can enter into a prenuptial agreement?
To begin with, it is worth deciding on who has the right to act as parties to the marriage contract. It can be:
- legally capable persons;
- minors who have acquired emancipated status.
The procedure for concluding a marriage contract
The contract is concluded exclusively in writing. This is due to the fact that in the event of divorce through the judiciary, it acts as an evidence base. Moreover, only after certification the marriage contract comes into force. The notary shall explain to the parties the following:
- the meaning of the document and the features of its content;
- its significance for each of the parties;
- possible consequences that may entail its entry into force.
The structure of the prenuptial agreement
This document can be made both at the time of marriage, and after. A marriage contract does not have a clearly defined form. However, the law establishes a set of necessary attributes that must be present in it. It is about the following:
- date of preparation of documents;
- FULL NAME. each spouse;
- marriage registration number and certificate details;
- a list of general provisions reflecting property and other relationships;
- features of contractual relations;
- additional provisions;
- mailing addresses and other details of the spouses;
- signatures.
What can not be prescribed in the contract?
The phenomenon of a marriage contract is gaining more and more popularity. Its essence is to determine property and other relationships between spouses in the course of family life, as well as in the event of a divorce. But there are a number of points that are forbidden to be included in such documents. These include:
- restriction of freedom of action and constitutional rights of the parties;
- restriction of the right to protect legitimate interests;
- features of personal relationships;
- reduction of the rights of the disabled spouse to receive material maintenance;
- obligation to commit knowingly unfavorable transactions;
- any items that are contrary to law.
The psychological aspect of the marriage contract
In domestic legal practice, such a phenomenon as a marriage contract is not so common. Pros and cons are considered from a psychological point of view. It is believed that spouses deliberately set themselves up for divorce. It is this factor that is intimidating. Between spouses there is an internal feeling of distrust. Nevertheless, it is worth considering such points:
- With a serious attitude to the family, the contract cannot cause a divorce. Most couples who break up a marriage have no contractual relationship.
- Having a marriage contract in hand, each of the spouses can be sure that in the event of a disagreement, no mercantile thoughts can affect the division of property, because everything is already predetermined.
- The conclusion of a prenuptial agreement is a symbol of respectful and trusting relations between spouses, because they jointly determine priorities in terms of property ownership.
Marriage contract: sample
Given that family life is closely connected with material relations, the issue of the division of property is particularly acute. The text of the marriage contract will help you draw up an experienced lawyer. In general, it looks like this:
- Property of spouses:
- determination of the scope of joint property;
- determination of the share that is assigned to each of the spouses in case of divorce.
- Legal regime of certain types of property:
- cash deposits made during the marriage, as well as accrued interest and profits on them (assigned to the spouse in whose name they were made);
- securities purchased during the marriage, as well as the distribution of income from them (belong to the family member for whom they were issued);
- jewelry, antiques and works of art purchased during the marriage (belong to the person who made the purchase);
- wedding gifts (shared between spouses on the basis of the guests from whose side they were given);
- gifts made to each other (remain with the receiving parties);
- an indication of property owned personally by the spouses (cannot be the subject of a section).
- Mutual content:
- in case of divorce, one of the spouses agrees to pay the maintenance to the other party with whom the joint children will live (indicating the amount and to what age);
- in case of disability of one of the spouses, the second party after the dissolution of the marriage pays the maintenance (indicating the amount) until the moment of marriage.
- Family expenses:
- distribution of responsibilities for the repayment of expenses related to the payment of housing and communal services, car maintenance, tourist trips, repairs and so on.
- Housing Rights:
- in the event that the housing belongs to one of the spouses, the second party, upon dissolution of the marriage, is obliged to leave this object and to be deregistered (indicating the deadlines).
- Responsibility for obligations:
- each of the spouses bears obligations on the taken loans within the property belonging to them;
- in the presence of common obligations, responsibility is borne by jointly acquired property;
- both spouses are liable for material and moral harm that may be caused by their joint children to third parties;
- in the event of a change in the conditions of the prenuptial agreement, the spouses undertake to notify their creditor thereof.
- Conclusion:
- spouses' awareness of the legal consequences of concluding a contract;
- the possibility of changing or terminating the contract by agreement of the parties;
- inadmissibility of unilateral refusal to fulfill obligations undertaken;
- the contract is terminated at the time of the judicial decision on divorce;
- equal payment of costs associated with the conclusion of the contract;
- There are three copies of the contract, one of which is transferred to the notary for storage.
Invalidation of a document
If the conclusion of the marriage contract was made in violation, it may be declared invalid. It is about the following:
- one of the parties was in a state of drug or alcohol intoxication, was exposed to the effects of drugs or suffered severe stress;
- one of the parties was deliberately misled about the content of certain clauses of the agreement;
- the person has signed the contract under the influence of threats.
Conclusion
Disagreements often arise between spouses regarding property relations. In this regard, the issue of how to draw up a marriage contract becomes relevant. Despite the fact that the legislation does not spell out this norm as mandatory, this phenomenon is increasingly encountered in domestic practice.