When a couple has made the decision to get married, many doubts may arise about the consequences that may arise in the event of a possible break-up of the relationship. Therefore, in today's post we will focus on explaining what a prenuptial agreement consists of, how it is regulated in Spanish law and what its effects are.
Description of ‘prenuptial agreement
A prenuptial agreement, can be detailed as a contract that the future spouses sign before celebrating the marriage, in order to organise those economic or personal issues that occur during the marriage and/or after a possible marital breakdown.
These agreements are understood to be fully valid and binding for the spouses.
What should be taken into account when making a prenuptial agreement?
These contracts are based on a series of principles that the future spouses must bear in mind to ensure the validity of the agreement. First of all, it is necessary to have the concurrence of consent, object and cause, because we are dealing with a private contract signed between two parties that is covered by Article 1261 of the Civil Code.
The principle of party autonomy and the principle of freedom of agreement between the spouses, as set out in Articles 1255, 1323 and 1324 of the Civil Code, should be noted. This freedom of agreement is subject to the legally established limits, i.e. it may not be contrary to the law, morality or public order. It is also important to take into account the content of article 1256 of the Civil Code, which establishes that the validity and performance of contracts cannot be left to the discretion of one of the parties, and must be guided in any case by the principle of good faith of article 7 of the Civil Code.
Is it advisable to sign a prenuptial agreement?
This type of agreement is expressly subject to the will of the parties and offers greater legal protection. However, the casuistry is very diverse, so it should also be taken into account that when assessing the relevance or not of signing this agreement, it is a personal decision that should be taken with the tranquillity and meditation that it deserves. It should always be accompanied by good legal advice from a team of specialised lawyers.
If we focus on what usually happens in practice, we find that the conclusion of prenuptial agreements is an infrequent practice, however, it is true that their signature stands out when we are dealing with couples who are interested, above all, in organising their assets.
Differences between prenuptial agreements and marriage contracts:
When we talk about prenuptial agreements, we cannot confuse them with the concept of marriage contracts. Although it is true that they may be similar in certain matters, the object of each of them differs in terms of their content.
Marital contracts are configured as a legal mechanism aimed at regulating the economic relationship that will take effect once the marriage has been celebrated, so that the future spouses will choose the matrimonial property regime that best suits their interests. In our country, this regulation changes depending on the geographical area in which the couple is residing, although we can distinguish two predominant regimes in Spain: the separation of property and the community property regime. On the other hand, the content of a prenuptial agreement can be much more extensive, as we have already mentioned.
These agreements must be made in a public deed and before a notary, and can be signed either before or after the celebration of the marriage.
If you want to have a prenuptial agreement that allows you to protect your assets, call us.
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