What is a prenuptial agreement and is it the same as a marriage contract?
A prenuptial agreement has the legal nature of a contract, i.e. it is the various agreements that a couple enters into before getting married.
These agreements are valid during the marriage and, in particular, when the marriage is broken or terminated (divorce, separation, annulment or death).
The marriage contracts are the legal document, in a public deed, by means of which the future spouses formalise the agreements reached in the prenuptial agreement.
Can prenuptial agreements and marriage contracts be modified?
Yes, they can be modified at any time, provided that there is agreement between the spouses.
If the marriage is not celebrated, are the marriage contracts valid?
No. The marriage contracts would not be valid because they are subject to the condition of the celebration of the marriage.
The prenuptial agreements, as a contract, would be valid and would be subject to the legal regime applicable to contracts.
What agreements can we include?
There may be other agreements of a non-property nature, although they normally regulate the economic aspects of the marriage.
A stipulation that is contrary to law or morality or that limits the equality of the spouses is void (Art. 1328 CC).
Can stipulations on the custody and guardianship of the children be included?
This measure will not be compulsory for the judge, but will have to be approved by the Public Prosecutor’s Office.
It will have to be assessed whether this agreement is not detrimental to the child, so that the divorce judge could agree on a different custody system, in the interests of the child.
What other pre-nuptial agreements can we include?
The following clauses or stipulations can be included:
Marital gifts. These are made before the marriage and in favour of one of the spouses or both spouses in favour of each other.
Waiver of the compensatory pension.
The payment of a monthly annuity to the other spouse without there being an imbalance of assets.
Payment of an amount in the form of a lump-sum benefit in whatever form they wish.
Testamentary stipulations of one or both spouses…
Who can grant marriage contracts?
All persons who have the capacity to contract or the capacity to act.
What are the legal requirements for an agreement to be valid?
In order for an agreement to be valid, the following requirements must be met:
- They must be recorded in a public deed.
- The marriage must be celebrated within one year of the date on which the marriage contract was executed.
- Registration in the Civil Register.
The same requirements must also be met in order to modify the marriage contracts.
Could the marriage contracts be null and void? And, if so, what is the time limit?
Like any other contract, an agreement may be subject to nullity.
What are the grounds?
- Consent given by a person who is not allowed by the Civil Code to give consent (e.g. a minor).
- Consent under error, violence, intimidation or fraud.
- Covenants contrary to the law, good customs or limiting the rights of the spouses.
- No public deed
- Who can apply and within what period of time?
Any of the spouses, heirs, creditors or any interested third party may request it. And they will affect the whole of the contracts or some of the clauses. They are imprescriptible, however, the right of restitution has a term of 15 years.
And can they be annullable?
The contracts may be subject to annulment in the following cases:
Vitiation of consent that is not susceptible to absolute nullity.
Lack of capacity to act on the part of one of the spouses.
Lack of consent in acts of administration (ex Article 1.322 of the Civil Code).
Within what period of time can it be filed? The limitation period is 4 years:
From the cessation of violence or intimidation, date of contract due to error or falsehood… In the case of transfer by gratuitous title, they are imprescriptible.
What happens in case of total nullity of the contracts?
The supplementary economic regime would have to be applied depending on the territory.
What happens in the event of partial nullity, affecting some of the clauses of the contracts?
In the case of partial nullity, it is necessary to take into account the will of the couple to grant them.
Once the null clauses have been eliminated, the contracts continue to preserve the spirit of the spouses’ agreements, so they will maintain their effectiveness (principle of preservation of contracts).
What is restitution, and what is the confirmation, correction or validation of the marriage contract?
Restitution is an attempt to eliminate the effects of a contract that has been declared null and void.
Confirmation, correction and validation are possible in cases of annulment, but are not possible in cases of absolute nullity. They imply the will of the spouses to maintain the validity of their acts from the moment they were entered into.
At Winkels Abogados we are experts in Family Law and in pre-nuptial agreements; therefore, we can advise you on the most appropriate economic regimes for your circumstances, as well as clauses or measures that are in accordance with the law.