The legal assumption is that all property acquired by spouses through work during the course of their married life constitutes their joint property, which they manage and dispose of jointly and by mutual agreement. However, the legislator has provided the possibility to exclude this “statutory regime” of joint property by concluding a special agreement, commonly known as a “prenuptial agreement,” and defined in the Family Law as a “marriage contract.” By concluding a marriage contract, spouses are given the option to regulate their property relations differently from those prescribed by legal provisions.
A marriage contract is concluded in the form of a notarized (solemnized) document. The subject of the marriage contract may be property that the spouses already own at the time of concluding the contract, as well as all property they may acquire in the future (existing and future property). If the marriage contract includes real estate, the contract must be registered in the real estate cadastre. This contract can be concluded by spouses during the marriage, but it can also be concluded by future spouses before the marriage is solemnized; in the latter case, the previously concluded marriage contract will only have legal effect if the marriage actually takes place. Furthermore, common-law partners can regulate their existing and future property relations by concluding a marriage contract.
The marriage contract is an extremely useful legal instrument. In fact, if a divorce occurs, in most cases it is followed by long, costly, and exhausting proceedings to divide the “marital property,” during which the former spouses dispute who owns what and to what extent. By concluding a marriage contract, such disputes are prevented, as the contract itself specifies what will be considered the separate property of each spouse, to which the other spouse has no rights. Naturally, the content of the marriage contract can vary. Spouses can define what will constitute the separate property of each spouse, exclude joint property entirely, provide other criteria for determining joint property, establish how shares in joint property will be determined, and so on.