(Pre)nuptial agreement
What is a marriage contract and what is a prenuptial agreement?
A marriage contract is a contract concluded by the spouses to regulate their property relations. A prenuptial agreement is a contract concluded by future spouses. If the marriage does not take place, the prenuptial agreement has no legal effect. Unmarried partners can also conclude an (extra)marital contract. In that case, the recommendation is to include in the contract the date of the beginning of the extramarital union (joint life) in order to unambiguously mark the moment in time when the regime of acquiring joint property begins, as it applies in marriage.
What is the meaning of a marriage or prenuptial agreement?
The property acquired by the spouses through work during the life of the community constitutes their joint property. The presumption (rebuttable) is that their shares in the common property are equal. Spouses or future spouses can arrange their property relations differently with a marriage or prenuptial agreement. For example, they can agree that the property they have acquired through work during their life together is the separate property of one of the spouses, or that the property in question will be divided in a certain percentage (eg 25%-75%). It is important to note that the property that the spouses entered into the marriage remains their separate property during the marriage, and is not divided in the event of a divorce. For the avoidance of any doubt, it is possible to enumerate in the contract all the separate property that one or both spouses bring into the marriage and to which the other spouse does not claim any right. If the contract includes real estate, the record of the existence of the marriage contract is entered in the real estate cadastre.
Is it possible to regulate the exercise of parental rights in the case of divorce with a marriage contract?
The answer is: no. Spouses cannot regulate with a marriage contract which parent the child will live with in the event of a divorce. This is because the decision on the above must always be made by the court, taking into account the best interests of the child.
Danilo Babić- lawyer in Novi Sad
