The Marriage Contract
The marriage contract is a formal deed in which a future husband and wife set out any terms of their marriage as they see fit, albeit within the confines of the legal rules. They may not deviate from those rules governing public order and common decency, from those setting out the respective rights and duties of the husband and wife or the rules which deal with the management of communal estate and assets. If there is no marriage contract, then they are governed by the statutory prenuptial system. A husband and wife may change their marriage contract during their marriage.
Procedure for Signing a Marriage Contract:
The contact must be drawn up prior to marriage. To this end, the parties must appear before a notary, who draws up the deed with a view to having it signed.
Either party who is unable to attend may be represented by a proxy by means of a special power of attorney executed before a notary.
The marriage contract takes effect on the date of the civil marriage ceremony.
The marriage certificate must provide the following information: date of the contract, the name and address of the notary who drew up the contract, and the type of marriage contract. Failing this, any clauses derogating from the statutory system may not be applied to third parties who engaged in contractual relationships with the husband and wife without knowledge of their marriage contract.
Any transfer of real estate in connection with a marriage contract must be registered with the mortgage registration office. All the marriage contracts must be registered with the Central Register of Marriage Contracts (CRM). If an agreement deviates from the proportional distribution rule or provides for the appointment of an heir, it must also be registered with the Central Register of Last Wills and Testaments (CRT).
If one of the spouses is a merchant, within one month after the marriage contract is drawn up the marriage certificate must be sent to the clerk of the Commercial Court in whose jurisdiction the spouse in question is listed in the trade register.
The Prenuptial Agreement
A prenuptial agreement includes all the rules governing the ownership and use of assets during the marriage and the settlement of said assets in the event that the marriage is dissolved. The prenuptial agreement takes effect on the day of the marriage ceremony and ends upon the death of one of the spouses, with their legal separation, divorce, the legal separation of their assets or the adoption of another prenuptial agreement.
Different Kinds of Marriage Systems
The statutory system is the system of communal estate of husband and wife comprising only property acquired after their marriage. It applies in the absence of a marriage contract. It is based on three types of estate: a) estate belonging to the husband; b) estate belonging to the wife; c) estate common to the husband and wife. The spouses are independent with respect to their own estates and equal with respect to their communal estate.
The system of separate estates by prenuptial agreement only applies if it has been expressly selected in the marriage contract. Under this system, there is no communal estate. There is, in principle, a full separation of assets and debts, and each of the spouses manages his or her own assets.
These systems are not mutually exclusive. They may be modified by means of special clauses. During the contract, the spouses may amend the prenuptial agreement before a notary.