The prenuptial agreement is a contract made between the future spouses before marriage to establish the property regime and other conditions for their union.
Couples who choose different property regimes need this document, as the partial communion regime is automatically applied if no other choice is made.
We will examine the key elements of the prenuptial agreement, the legal criteria needed for its validity, the process for its completion, and provide a template that can be used as a guide in legal practice. Join us!
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What is a prenuptial agreement?
The prenuptial agreement is a serious and official agreement, governed by Articles 1.653 to 1.657 of the Civil Code, made prior to a civil marriage.
The engaged individuals are able to set rules regarding the management of possessions and other heritage matters.
It may include statements about personal matters, as long as they do not go against the law, good morals, or the dignity of spouses.
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When is it required to create a prenuptial agreement?
- Couples with substantial wealth need to plan the organization and distribution of assets, particularly for inheritance or business purposes.
- Couples with children from previous relationships can use the agreement to safeguard their assets and avoid potential disputes.
What are the usual provisions found in a prenuptial agreement?
Some of the most frequent provisions found in a prenuptial agreement include:
Definition of private and public goods
Each spouse will retain ownership of specific property, while other property will be considered shared by the couple.
It is particularly important for couples who choose arrangements like partial sharing, complete sharing, or separate assets.
Inheritance and donation regulations
Determines how inheritances and gifts received by each spouse during the marriage will be handled.
Generally, these clauses specify if the goods will be shared as common property or kept as private possessions.
Financial debts acquired while married
Outlines the management of the couple’s finances, including bill payments, home upkeep, and other money-related responsibilities.
Some clauses might establish the percentage of contribution for each spouse according to their respective incomes.
Rights of any business or enterprise
When one or both partners have individual businesses, the agreement might specify terms regarding profit sharing, ownership stakes, and entitlements if the marriage ends.
Division of assets in case of a breakup or divorce
Specifies how the assets obtained during the marriage will be distributed in case of a breakup.
This can help avoid future disputes and enhance security for both sides.
Clauses concerning the management of products
Decides who will manage the couple’s assets, such as selling or buying properties and other investments.
These statements can help prevent disagreements regarding significant financial choices.
Guidelines for kids from previous marriages
The agreement for couples with children from previous relationships may contain provisions safeguarding the inheritance rights of these children to prevent any negative impact from the new marriage.
International stipulations
Couples with assets or businesses in multiple countries can use the agreement to determine how those assets will be managed under foreign laws.
This is particularly crucial in unions involving spouses of different nationalities.
Alimony forecasts
Some clauses might establish regulations regarding the potential requirement for spousal support, either while married or in case of separation.
Other specialized provisions
Each pair can have unique clauses to address specific needs or desires, as long as they comply with existing laws.
For instance, regulations regarding the handling of upcoming products, planned investments, or ethical dilemmas in marriage.
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How is the Antenuptial Agreement formalized?
Here are the key steps for formalizing the Antenuptial Agreement.
Assets Regime
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: During marriage, all acquired goods are shared by the couple, except for those received through inheritance or donation.
- All goods, gifts, and future assets are shared between the couple under the Universal Communion of Goods, with exceptions outlined in the law or agreement.
- Each spouse’s possessions, whether obtained before or during marriage, are considered separate under the concept of Separation of Goods.
- Each spouse manages their own property independently during the marriage, but in case of dissolution, they divide the property acquired jointly.
- Each spouse retains sole ownership of goods acquired before or during marriage under the policy of complete separation of goods.
- Mandatory separation of property is similar to total separation of property but is required in certain circumstances. While it does not involve sharing, there are legal debates about potential exceptions to this rule.
- Mixed Regime (Combined): Permits the mixing of aspects from various regimes, like separate ownership for certain assets and shared ownership for others, as outlined in a prenuptial agreement.
Areas to focus on:
- It is crucial to provide guidance on the most suitable regime based on the engaged couple’s financial situation and future objectives.
- To determine if custom clauses are necessary to adjust the property regime to the couple’s situation.
Writing agreements
The agreement might include:
- Clauses that pertain to the management of assets in marriage.
- Excluding or including specific items in the selected system.
- Predictions concerning upcoming business ventures, financial obligations, or safeguarding of assets and legacies.
Avoid using conflicting clauses that could be deemed invalid, such as provisions that go against fundamental legal norms or principles, like Article 1.655 of the Civil Code.
Public Writing in the Notepad
The antenuptial agreement needs to be formalized through a public document, as stipulated by the Civil Code (Art. 1.653), after it has been prepared.
- Costs consist of fees imposed by the registry office, which differ based on the state fee schedule.
- Scripture must be performed prior to marriage for it to have an impact.
The lawyer needs to make sure the bride and groom understand the consequences of the agreement and that it cannot be revoked after the marriage, except through a court annulment.
Entry in the Real Estate Registry
After the wedding celebration, the prenuptial agreement must be officially recorded at the appropriate property registry office in the area where the couple plans to live.
This is required to become effective prior to external parties, as stated in Article 1,657 of the Civil Code.
- Without registration, the agreement will not be valid with regard to third parties, leading to legal uncertainty in the couple’s financial dealings.
Suggestions:
- Acquire properties before marriage and ensure that their documentation complies with the chosen regime.
Other important factors to take into account
- If a couple has been in a stable relationship before getting married, they can include clauses in their agreement to manage assets acquired during that time, as long as it follows the law.
- The lawyer should keep track of legal precedents concerning the enforcement and interpretation of contract clauses, as court rulings can differ.
- In international weddings involving a foreign party or assets in other countries, it is crucial to consider the application of Private International Law. The Hague Convention on Goods Regimes could be applicable in these situations.
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Antenuptial Agreement Template
View the provided example of an Antenupial Pact model.
Antenupcal Capt’s public court.
[Name of the first spouse], [nationality], [marital status], [occupation], holder of ID number [number] and tax ID number [number], residing at [address]; and [Name of the second spouse], [nationality], [marital status], [occupation], holder of ID number [number] and tax ID number [number], residing at [address].
They will create this Antenuptial Pact in accordance with legal provisions, with mutual agreement on the clauses and conditions.
- Bens Regime – Initial Clause
The type of goods regime that will apply to marriage in Brazil will be determined by the Civil Code, such as complete separation of goods, partial community of goods, universal community of goods, or other regime allowed by law.
- Second Clause – Management of Assets
Property acquired before marriage by each spouse will be retained as the individual’s exclusive property.
The items obtained during the marriage will be subject to the regulations of the chosen property regime, unless specified differently in this agreement.
- Provision of Real Estate Items – Third Clause
The sale or transfer of shared property requires the explicit approval of both spouses, unless the chosen marital system specifies otherwise.
- Contracted Debts – Fourth Clause
Each spouse is accountable for any debts taken on individually before the marriage.
Debts incurred during the marriage will be governed by the regulations of the selected property arrangement.
- Clause Five – On Donations and Legacies
Inherited or donated property cannot be shared between spouses unless the chosen marital regime dictates otherwise.
- Final Provisions – Sixth Clause
This prenuptial agreement will take effect upon approval and registration at the Real Estate Registration Office and will be included in the marriage record.
The parties affirm that they agree to this pact willingly and without any external pressure, understanding all the terms included in it.
They are very just and employed, so they sign this document in [number] ways of the same substance and structure, in front of [number] witnesses who also sign.
[City], [Complete Date].
[Signature of the initial spouse] [Complete name]
[Full name] who is the second spouse signs here.
Witnesses observed.
Full Name: [Name]Identification Number: [CPF]
CPF: [Number]
Create a straightforward Antenupal Pact agreement quickly.
The prenuptial agreement is crucial for couples looking to set forth specific rules regarding their assets and inheritance matters prior to getting married.
It offers increased legal clarity, avoids potential disputes, and is particularly beneficial in cases related to inheritance, business, or children from prior relationships.
A well-designed Antenupcial Pact template that complies with current laws can address the unique requirements of each couple in a convenient and customized manner.
A carefully crafted prenuptial agreement safeguards the inheritance and promotes greater harmony between partners.
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