Why Every Couple Should Consider a Marriage Agreement

Marriage agreements often carry a stigma of being cold or unromantic, but they can provide essential protection and clarity for couples. This article explores why even devoted partners can benefit from such agreements, how to draft them properly, and whether they hold up legally.

Understanding Marriage Agreements

Before the 1990s, discussions about financial responsibilities in divorce were rare in many countries. However, the shift to market economies brought new challenges, prompting the formal introduction of marriage agreements into civil law codes. A marriage agreement is a voluntary contract between spouses or those planning to marry, outlining property rights and obligations during marriage and after separation.

Why Marriage Agreements Are Important for Everyone

Surveys show that most people believe marriage agreements are unnecessary, often due to emotional reasons or a sense of having little to divide. Yet, even couples starting their life together with nothing but love can face unforeseen risks that a marriage agreement can help manage.

While proposing a marriage agreement might seem mercenary or insensitive, it often acts as a safeguard preventing impulsive decisions and misunderstandings.
— Victoria Aptekina, Senior Lawyer at European Legal Service

Preventing Manipulation and Conflict

Divorces are rarely amicable, and property can become a tool for manipulation. A marriage agreement can eliminate such tactics by clearly defining ownership and responsibilities, such as who provides financially and who manages the household or childcare. These terms can be adjusted before or after having children, ensuring fairness and mutual understanding.

Protecting Premarital Assets

Assets owned before marriage, like a home, can become joint property after purchasing new shared assets. A marriage agreement can specify how such properties are divided, protecting individual investments and preventing disputes.

Defining Financial Responsibilities

According to attorney Alexander Golovin, marriage agreements can specify:

1. Support obligations after separation.
2. Contribution to household expenses.
3. Management of funds for children's education.
4. Liability for debts incurred during marriage.

While agreements can address consequences of infidelity, courts typically invalidate clauses that disproportionately penalize one spouse.

Spouses’ rights and duties must be balanced; disadvantaging one party in favor of the other is prohibited.
— Alexander Gulko, Chief Judicial Lawyer, Gulko Legal Bureau

Safeguarding Family Wealth from Debt

Marriage agreements can protect shared assets if one spouse accrues debt. For example, a business owner borrowing in foreign currency faced increased debt after currency fluctuations. Thanks to a marriage agreement, only certain assets were liable, preserving the family's main properties.

How to Create a Marriage Agreement

Unlike popular culture portrayals, marriage agreements must meet legal formalities. They require notarization and compliance with local laws. Typically, couples provide multiple copies of the agreement, identification documents, proof of property ownership, marriage certificates, and children's birth certificates if applicable. Notarization fees are modest, and both spouses must be present.

When to Establish a Marriage Agreement

Marriage agreements can be signed before the wedding, becoming effective upon marriage registration, or at any point during the marriage, taking effect after notarization. They generally terminate upon divorce unless otherwise specified and become void upon the death of a spouse, except for provisions protecting the deceased’s personal property.

Limitations of Marriage Agreements

Marriage agreements do not govern non-financial aspects of relationships or child-related matters. They can be contested in court if deemed unfair, often leading to legal disputes during divorce proceedings. For example, a 2013 case saw a contract invalidated because one spouse signed under intoxication, resulting in equal property division.

Thus, while marriage agreements provide valuable protection, they are not foolproof.

Property Division Without a Marriage Agreement

Without an agreement, property is generally divided equally upon divorce, except for assets acquired before marriage, inherited items, gifts, or property essential for professional work. Personal belongings and children’s possessions are also protected. Courts scrutinize last-minute transfers or sales of shared assets and may require compensation to the other spouse.

To safeguard assets earned through individual effort, incorporating these details into a marriage agreement is advisable.

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