Truths and misconceptions about the prenuptial agreement

A prenuptial agreement, is a contract concluded by spouses, and its goal is to regulate exclusively property relations of spouses during marriage and / or upon termination of marriage. Below we bring you an analysis of this legal institute (prenuptial agreement lawyer) in order to better understand it.


What is not the subject of a prenuptial agreement?


In order to better understand this legal term, it is necessary to clarify what its subject is and what, on the other hand, does not have to or should not be an integral part of the contract. We often hear speculations in the media about the various controversial contents of the marriage contracts of celebrities in the world. However, the first thing we should keep in mind is that the goal of marriage contracts in our legal system is to regulate exclusively the property relations of the spouses with regard to the property they acquire during the marriage.


Therefore, the subject of the prenuptial agreement (prenuptial agreement lawyer) can in no way be issues related to the behavior of spouses, habits that they may or may not have, etc. Furthermore, the marriage contract does not have to regulate the issue of property rights over the property acquired by the spouses before the conclusion of the marriage, because that property would certainly not fall under the regime of joint property of the spouses if the prenuptial agreement was not concluded, ie. the other spouse would certainly not be able to assert rights to such property in case of divorce.


This does not mean that in the prenuptial agreement it cannot be stated that one spouse is e.g. the owner of the apartment he acquired before the marriage and will remain so in case of divorce.


Therefore, property acquired before marriage is considered the property of the spouse who is its owner even after the conclusion of the marriage, regardless of whether the spouses concluded a prenuptial agreement and how they decided to divide the property acquired in marriage.


And what should be the subject of the contract?


On the other hand, acquired assets by the spouses during the marriage may be considered joint property of the spouses or may fall under the special property regime.


Simply put, joint property means that everything that falls under it (all assets acquired during the marriage) is considered the property of both spouses. It is a legal presumption that the shares of each spouse are equal (“half-half regime”) however, the spouse who claims the opposite in a divorce lawsuit must prove it.


Separate property, on the other hand, means that the spouses have established through the prenuptial agreement which exact property acquried in the marriage belongs to one spouse and which to the other spouse. Therefore, the legal presumption that e.g. a family house represents joint property, only because it was bought during the marriage, and the spouses’ shares in it are equal, it will be known exactly who owns the house based on what funds it was bought from and how the spouses determined ownership of future property.


We especially emphasize that the Serbian Family Law clearly states that the prenuptial agreement excludes the mentioned legal (presumed) regime of joint property of the spouses, and the property will be divided in accordance with the provisions of the agreement in case of divorce.


 When and why to conclude a prenuptial agreement?


The conclusion of this type of agreement is recommended and is most often concluded in situations when one spouse has significantly larger assets than the other, in order to protect his interests in the case of divorce.


However, it is also recommended in situations when the spouses intend to invest significant funds in the property that at the time of concluding the agreement belongs to one or the other spouse, such as e.g. greater investment in already started business or investment in already existing real estate, etc. (Prenuptial agreement lawyer)


The conclusion of the prenuptial agreement introduces order and predictability of the distribution of the spouses’ property, significantly facilitates and shortens the divorce procedure, which is often in itself very stressful and tedious for both spouses.


For this reason, given the complexity of legal relations, a large number of branches of law covered by this agreement, it is necessary to consult an expert on its conclusion who will advise you on how to best achieve the desired goal, in which our office can to provide you with comprehensive assistance.