Premarital contract and marriage capitulations

If you are thinking about getting married, take a moment to consider celebrating a prenuptial contract and the marriage capitulations. It is advisable to plan with your future spouse what matrimonial economic regime you will choose or establish certain measures in case of separation.

The Premarital contract

A premarital contract is an agreement between two people who are to be married by religious or civil marriage. In this prenuptial contract the matrimonial economic regime is established (usually in earnings or separation of goods), which is nothing more than to define the division of the patrimony that they contribute, that is to say, the properties and the money that belongs to each person before marriage. 

In addition, it will be fixed the patrimony which will remain in the property of that person after the ceremony and even after the end of the marriage or civil union.

Effects of a premarital contract

  • Differentiate your own patrimony from the patrimony of your future spouse before the celebration of the union.
  • Protect themselves from the debts of the other spouse. 
  • To determine the nutritional right and patrimonial division of the spouses in case of divorce or death of one of them.

Basic rules for drafting a premarital contract or prenuptial agreement

The prenuptial agreement is generally executable and applicable as long as it is not contrary to law, morality or public order. Therefore, follow these tips to adapt your contract to the current legal requirements:
  1. Be frank and honest with others, do not hide or stop mentioning the property or money you own or may have in the future. Use our inventory models to write more faithfully the list of assets that each one owns.
  2. Take enough time to agree on the terms of the premarital contract, do not rush or leave it for the last minute. Must be completed and signed before the ceremony.
  3. Both must be convinced of what they will agree on voluntarily. Neither of you should feel “obligated” to make the deal if you don’t want to.
  4. The agreement must be equitable for both. A good deal avoids further problems in the event of divorce or dissolution, so it should be acceptable to a judge.
  5. As to its form, it must be express and in writing. It must be signed by both contributors and even add record copies of the property.
  6. Your prenuptial agreement must deal with the finances and ownership of the couple above all. Make sure it complies with the regulations and is suitable for both, so it will facilitate your acceptance by a court in the future.
  7. Consider getting legal advice before completing the agreement, and make sure you fully understand and agree.
And finally, remember that your premarital contract is confidential. If there is any major change in your circumstances it may affect the Convention and you should probably make a new one. A major change could be losing your job, a long-term illness, or having a child.

Next step: The marriage capitulations

If you have a patrimony to protect, consider it necessary to formalize your prenuptial agreement in the marriage capitulations. This should be done before or after marriage, or enter a civil union. To do this, hire the services of a specialist lawyer and follow the following legal rules to complete them:
  • The marriage capitulations must be recorded in public deed, for which they have to be granted before a notary. 
  • If they contain common rights on real estate, they will have to be registered in the property registry. 
  • The same, if one of the spouses is a trader, it must be recorded in the mercantile register.
  • They cannot be contrary to laws or good manners or limit the equal rights of each spouse.
  • Although they have effect between the spouses since their celebration, they must register in the Civil registry to obtain full effects against third parties (solemn form).

Effects on the will

The best option is to make a will, or to renew every certain time the capitulations after your marriage to leave record of your willingness.  The modification may entail changing the economic regime or limiting itself to the modification of specific aspects of the content. Both modifications are perfectly possible.

Finally, remember that you can provide paperwork and avoid expenses with tax-free donations within marriage or civil union.
Do you need a lawyer’s assistance to prepare a premarital contract? Although spouses can reach an agreement, the law usually requires two lawyers to conclude the agreement. Good advice will help you to choose the best matrimonial economic regime.