Marriage agreements: 7 things you should know

Talking about money or a possible breakup before getting married seems inappropriate. But, in view of the large number of divorces, it is common for couples to establish financial or personal agreements before celebrating marriage .

Once married, the spouses also usually agree on a financial regime (generally separation of assets) different from the one they had at the time of the marriage (generally marital property). Mainly, when one of them is a businessman or free professional.

These agreements are reflected in the so-called marriage capitulations .

Below, we answer the 7 questions you ask yourself before and after getting married related to marriage agreements.

1. What are marriage agreements?

Marriage agreements are a document in which the future spouses or spouses stipulate the rules that regulate the economic effects of marriage , and other issues related to it.

Regarding marriage agreements, our Family Code provides:

In marriage contracts, the grantors may stipulate, modify or replace the economic regime of their marriage or any other provisions due to it.

Marriage agreements may be granted before or after the marriage is celebrated.

2. When can marriage contracts be granted?

Marriage agreements may be granted at two different times:

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Marriage agreements before the celebration of the marriage

In this case, we are talking about premarital agreements . The marriage must be celebrated within one year, otherwise the capitulations will lose their effectiveness.

Marriage agreements after the celebration of the marriage

In this case, we are talking about marriage agreements. There is no limit to the number of times marriage contracts can be granted.

3. Who can grant marriage contracts?

The general rule is that people qualified to marry may grant marriage contracts .

Thus, adults , emancipated minors (from 16 years of age ) and people with disabilities (they will need the assistance of their parents or guardian to grant marriage agreements) may marry and grant marriage contracts.

4. Can non-emancipated minors grant marriage contracts?

Our Family Code provides:

The non-emancipated minor who, in accordance with the Law, may marry may grant capitulations, but will need the assistance and consent of his or her parents or guardian, unless it is limited to agreeing on the regime of separation or participation.

Before the reform, under 14 years of age (non-emancipated minor) could request a judicial dispensation to marry.

However, the Voluntary Jurisdiction Law has eliminated the possibility of minors under 14 years of age to obtain judicial dispensation to marry 

Therefore, non-emancipated minors will not be able to marry and, consequently, will not be able to grant marriage contracts.

The minimum age to marry and make a marriage contract is 16 years old .

5. Requirements for marriage agreements

There are 3 requirements to make marriage agreements:

Mutual agreement of the couple or spouses

To make decisions about the marital property regime or other issues related to the marriage, it is necessary that both parties agree .

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The matrimonial property regime cannot be modified by one of the spouses unilaterally without the consent of the other spouse.

Public deed

It is an essential requirement that marriage agreements be recorded in a public deed executed before a Notary.

Otherwise, they will be void. Therefore, marriage agreements will be made before a Notary in a public deed .

The Notary will verify that what was agreed upon by the spouses is not contrary to the law or public order.

Registration of capitulations in the Registry

The registration of marriage contracts, although it is not a constituent requirement, is a requirement of effectiveness against third parties .

In the event of not registering them, the third party who does not know them may not be harmed by what is agreed upon in them.

  • Property Registry : If the marriage agreements affect real estate, they must be registered in the Property Registry.
  • Commercial Registry : If they affect a family business, they will be registered in the Commercial Registry.

6. What can be agreed upon in marriage contracts?

The agreements contained in the marriage agreements must respect the law, good customs (public order) and equality of law between the spouses.

Based on the provisions of the cited articles of the Family Code, in marriage agreements you can:

Agree or modify the financial regime of the marriage

The matrimonial property regime may be agreed upon or modified in the marriage agreements before or after the celebration of the marriage , respectively.

In Usa, there are 3 types of economic regimes :

Profit regime

The profits or benefits obtained by either of them will belong to both spouses .

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That is, all the money and all the assets obtained, as well as all the debts incurred during the marriage, will belong equally to the spouses .

In most of USA, in the absence of an agreement to the contrary, the supplementary regime will be the community property .

Separation of property regime

In the property separation regime, each spouse retains the ownership and administration of their assets , both those acquired prior to the marriage and those acquired during it.

This matrimonial property regime is convenient when one of the spouses is a businessman or free professional , one of the spouses has significant assets prior to the marriage, or when there are non-common children in a second marriage.

Participation regime

During the marriage it functions as a regime of separation of assets, but upon dissolution each spouse will participate in the gains or decreases in their assets.

As we have said, in USA the majority of marriages are married in community property.

So, if nothing is stipulated in this regard , once the marriage is contracted, the spouses are married under the community property regime.

Therefore, to establish the regime of separation of assets or participation it will be necessary to agree on it in marriage agreements .

Agree on other matters related to the marriage

Although the most common thing is that the financial regime of the marriage is agreed upon or modified, issues related to :

  • The way of life of the spouses . For example, agreeing on rules on cohabitation, place of residence , stipulating compensation in case of marital infidelity…
  • The way in which spouses will face a marriage breakup. For example, they may establish a regime of cohabitation, custody of children , attention to the burdens of marriage… Now, this regime will be applicable during the period of time that elapses between the breakup and the judicial adoption of measures.

7. Can marriage contracts be modified?

Yeah . The modification of marriage agreements must be recorded in a public deed authorized by a Notary.

The spouses can modify the marriage agreements as many times as they wish , always respecting the law, public order and equal rights between them.

Likewise, it is possible to subject marriage agreements to a term or condition . For example, it may be stipulated that the matrimonial property regime changes to separation of assets from the birth of the first child.

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