February 02, 2024
According to the provisions of the Croatian Family Act, a prenuptial agreement is called a marriage contract. A marriage contract may be concluded by persons who are married, or persons who are in a common-law union, and who is equal in its legal effects with marriage. In accordance with the law, it is considered that a man and a woman are in a common-law union if they live together (the so-called life union) for at least three years, and if a child is born, then a shorter one. The same conditions are for the life partnership of persons of the same sex, i.e. and these persons will be considered to be in a cohabitation if they live together, i.e. they have had a living community for at least three years.
If a prenuptial or marriage contract is concluded, then the legal rules on matrimonial property will apply to the property of the spouses. Matrimonial property is property acquired by spouses during the duration of the marriage union or originated from that property. The difference between marriage and marriage is that couples can be married, but not in a marital union if, for example, they have ended the relationship and stopped living together (parting), but have not divorced. The property includes everything acquired through the work of any of the spouses, as well as property acquired through a joint venture, regardless of whose name is on the ownership documents. The matrimonial property includes not only tangible property such as real estate and vehicles, but also intangible assets such as intellectual property rights and other rights acquired during the marriage. In the event of divorce, the community property is usually subject to division between spouses, unless otherwise agreed by a prenuptial or marriage agreement or if special legal exceptions apply.
It is important to emphasize that the matrimonial property does not include personal property that spouses had before the marriage or property that they inherited or received as a gift during the marriage, unless otherwise provided by the marriage contract or joint ventures.
1. Legal definition of a pre-marital or marriage contract (hereinafter: marriage contract)
By marriage contract, spouses or common-law partners may regulate their property rights on existing or future property. This property can also be one that does not enter the community property, and property that enters the community property can be excluded.
A key element of the marriage contract is the freedom to contract, i.e. that the spouses may contract anything that is not expressly prohibited by law.
If a marriage contract contracts something in relation to real estate, it must be registered in the land register, otherwise it will not apply in relation to third parties.
2. Basic elements of the marriage contract
The marriage contract should contain clearly defined provisions on:
- property included in the contract (e.g. property acquired before marriage, during marriage, inheritance).
- how to manage joint property during marriage.
- division of property during the marriage, in the event of divorce or death of one of the partners.
- the conditions and circumstances under which the contract may be amended or annulled.
3. Required contract form
The marriage contract must be drawn up in writing and certified by both parties before a notary in order to be legally valid. It is recommended that each partner have a lawyer who will review the contract before signing, to ensure that they understand all the provisions and consequences.
4. Things to look out for
The marriage contract must not contain provisions that are contrary to public order or morality. Both parties should have sufficient time to consider the contract before signing. It is necessary to ensure a complete and honest exchange of information on the financial condition of both parties. Provisions on e.g. upbringing of children and personal non-property rights and obligations cannot be the subject of a marriage contract, but the subject of the contract must be exclusively property relations on existing or future property.
Conclusion
A marriage contract is a useful legal instrument that allows couples to regulate their current and future property relations in a transparent and fair manner. However, it is important to approach the preparation of this document with understanding and caution, with the professional legal assistance of a lawyer specializing in property and legal relations, and to ensure that the contract is legally valid and fair to both parties.
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