The antenuptial agreement is a contract made by the future husband and wife before getting married to establish the property regime and other financial or personal conditions for their life together.
Couples who choose different property regimes must have this document, as the partial communion regime will be applied by default if they do not express a preference.
This article will discuss the key elements of the prenuptial agreement, the necessary legal conditions for its validity, the process for its formalization, and provide a model that can be used as a guide in the legal sector. Join us!
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What does an Antenupial Pact refer to?
The prenuptial agreement is a serious and official agreement, governed by Civil Code Articles 1,653 to 1,657, made prior to a civil marriage.
The engaged individuals are able to set rules on managing property and other inheritance matters without restrictions.
It might include provisions on personal issues, as long as they do not go against the law, societal norms, or the respect between spouses.
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When is an Antenupial Pact required?
- Couples with substantial wealth need to arrange the handling and distribution of assets, particularly for matters like inheritance or business.
- Couples with children from prior relationships: the agreement can safeguard property rights and avoid potential disputes.
Common provisions found in a prenuptial agreement include…
Common provisions found in a prenuptial agreement include:
Private and common goods are defined.
Each spouse will maintain ownership of their own property, while some property will be considered joint.
Couples who choose partial or complete financial sharing or separation of assets find this particularly important.
Inheritance and donation regulations
Specifies how inheritances and donations acquired by each spouse during the marriage will be handled.
Typically, these clauses specify if the goods will be shared as common property or kept as private property.
Financial obligations while married
Specifies how the couple will handle their finances, including paying bills, maintaining the house, and meeting other financial responsibilities.
Some clauses might establish the proportion of contribution from each spouse according to their respective earnings.
Rights pertaining to any company or enterprise.
The agreement may outline how profits, ownership in the company, and rights will be divided if one or both partners have their own business.
Division of assets in case of separation or divorce
Specifies how the assets obtained during the marriage will be distributed in the event of a breakup.
This can help avoid future disagreements and provide increased safety for both parties.
Goods administration clauses
Decides who will manage the assets of the couple, such as selling or buying properties and other investments.
These provisions are beneficial for preventing disagreements concerning significant financial choices.
Guidelines for kids from prior marriages
The agreement for couples with children from previous relationships may have clauses to safeguard the inheritance rights of these children, preventing any negative impact from the new marriage.
International Agreements
Couples with assets or businesses in multiple countries can use a pact to determine how these assets will be handled in accordance with foreign laws.
This is particularly crucial in unions involving partners of different nationalities.
Alimony forecasts
Some clauses may establish regulations regarding the potential requirement of spousal support, either during marriage or in case of separation.
Other specialized provisions
Each pair can add individual clauses to address specific needs or desires, as long as they do not conflict with existing laws.
For instance, regulations regarding the handling of forthcoming items, anticipated investments, or moral and ethical concerns concerning married life.
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How is the Antenuptial Pact formalized?
Here are the key steps for formalizing the Prenuptial Agreement.
Property ownership laws
Before getting married, brides need to choose which property regime they want to follow. The options available are outlined in the Civil Code.
- Standard regime of Partial Communion of Goods, where the assets obtained during marriage, except for those received through inheritance or donation, are shared by the couple.
- All goods, gifts, and assets are shared by the couple under the Universal Communion of Goods, with exceptions as outlined by law or agreement.
- Each spouse’s property, whether obtained before or during marriage, remains separate under the concept of Separation of Goods.
- During the Aquests, each spouse manages their property individually while married. However, in case of separation, acquired property is divided equally between them.
- Each spouse retains exclusive ownership of all goods acquired before or during marriage under the concept of Total Separation of Goods.
- Mandatory separation of property is similar to total separation of property, but it is required in certain circumstances and may lead to debates in legal circles about potential exceptions to the rule of non-sharing.
- Mixed Regime (Combined): permits the mixing of features from various regimes, such as division for certain assets and sharing for others, as specified in a prenuptial agreement.
Points to focus on:
- It is crucial to provide guidance on the most suitable regime based on the financial situation and future objectives of the couple.
- To assess if custom clauses are necessary to adjust the property regime to the couple’s situation.
Writing a contract
The contract might include:
- Clauses pertaining to the management of assets in marriage.
- Excluding or including specific items within the selected system.
- Predictions concerning upcoming business developments, debts, or safeguarding of inheritance or legacy.
Avoid using conflicting clauses that may be deemed invalid, such as provisions that go against mandatory rules or legal principles, for example, Article 1.655 of the Civil Code.
Public Writing in the Notebook
After being drawn up, the prenuptial agreement needs to be formalized through a public document, as stated in the Civil Code (Art. 1.653).
- Costs comprise fees imposed by the registry office, which differ based on the state fee schedule.
- Scripture will be effective only if followed prior to marriage.
The lawyer needs to make sure that the bride and groom understand the consequences of the agreement and that it cannot be changed after the marriage, except through a court annulment.
Registration in the Real Estate Registry
After the wedding celebration, the prenuptial agreement must be recorded in the appropriate property registry office in the area where the couple will live.
This is required to be effective with third parties, as stated in Article 1,657 of the Civil Code.
- Without registration, the agreement will not be valid for third parties, causing uncertainty in the couple’s financial dealings.
Suggestions:
- Ensure that properties are obtained prior to marriage and confirm that their documentation complies with the chosen regime.
Other important factors to take into account
- If the couple lived together in a stable relationship before getting married, their agreement can include rules for managing assets obtained during that time, as long as they follow the law.
- The lawyer should be familiar with legal precedents regarding the implementation and understanding of contract clauses, as court rulings can differ.
- When one person is from another country or the couple owns assets overseas, it is essential to think about using Private International Law, particularly the Hague Convention on Goods Regimes, for international weddings.
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Model of a prenuptial agreement
See the example of an Antenuptial Agreement model below.
Public Court of Antenupcal Capt
[First spouse’s name], [nationality], [marital status], [occupation], holder of ID number [number] and tax ID number [number], resides at [address]; and [Second spouse’s name], [nationality], [marital status], [occupation], holder of ID number [number] and tax ID number [number], resides at [address].
Shall enter into this prenuptial agreement in accordance with the relevant legal requirements, as outlined in the following terms and conditions.
- Bens Regime – First Clause
The goods regime that will apply to marriage in Brazil will be determined by options such as total separation of goods, partial communion of goods, universal communion of goods, or other regimes allowed by law as stated in the Brazilian Civil Code.
- Administration of Goods – Second Clause
Property acquired before marriage by each spouse will continue to be owned solely by that spouse.
The items obtained during the marriage will follow the regulations of the chosen property regime, unless specified differently in this agreement.
- Provision of Real Estate Items – Third Clause
The transfer or sale of communal property requires the explicit approval of both partners, unless the chosen marital regime dictates otherwise.
- Fourth Section – Debts that were Agreed Upon
Each spouse is accountable for the debts they accrued before the marriage.
Debts incurred during the marriage will be subject to the regulations of the selected property regime.
- Fifth Clause – Donations and Inheritances
Inheritances or gifts cannot be shared between spouses unless a different marital regime is selected.
- Final Provisions – Sixth Clause
This prenuptial agreement will become effective upon its approval and registration in the Real Estate Registration Office and will be included with the marriage certificate.
The parties affirm that they enter into this agreement willingly and with full understanding of its contents.
They are very just and employed, so they sign this document in [number] ways that are the same in substance and structure, with [number] witnesses present to also sign.
[City], [Complete Date].
[First spouse’s signature] [Complete name]
[Second spouse’s signature] [Complete name]
Witnesses observed.
Full Name: [Name] Tax ID: [Number]
Full Name: [Name]ID: [Number]
Create a straightforward Antenuptial Agreement quickly.
The prenuptial agreement is a crucial document for couples looking to set specific guidelines regarding their assets and inheritance matters prior to getting married.
It offers more legal clarity, avoids potential disputes, and is particularly beneficial in cases related to inheritance, business, or children from previous relationships.
A tailored Antenupcial Pact model that aligns with current laws can address the unique requirements of each couple efficiently and individually.
A carefully crafted prenuptial agreement safeguards assets and promotes peaceful living between partners.
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