The Concept of a Postnuptial Agreement and the Time of Its Conclusion
A postnuptial agreement is the form of marriage contract that is concluded after the registration of the marriage. Under Article 1172 of the Civil Code, spouses may conclude a marriage contract that determines their property rights and obligations both during the marriage and upon divorce. The timing is left free by the law: under Article 1173, a marriage contract may be concluded either before the registration of the marriage or after its registration at any time. The difference lies only in the entry into force: a contract concluded before the registration of the marriage enters into force from the registration, while an agreement of already-married spouses operates from the moment of its conclusion.
This means that persons already in a registered marriage have the possibility to rearrange their property relations anew, and taking this decision often carries decisive weight in the process of divorce planning or estate planning.
Special Rules Connected with a Spouse Who Is a Recipient of Support
The law surrounds a recipient of support with special protection. Where one of the spouses is a recipient of support, the marriage contract must be concluded before the registration of the marriage. In the process of its conclusion the involvement of the guardianship and custody body, and also of the supporter, is necessary in the part determined by the corresponding decision of the court. In the performance of a marriage contract concluded with a recipient of support, responsibility for supervising the supporter's fulfilment of his obligations rests on the guardianship and custody body.
Furthermore, a marriage contract concluded with a recipient of support must not restrict his property rights more than is determined by the corresponding decision of the court. Where the contract is concluded between a supporter and a recipient of support, the guardianship and custody body appoints, for the process of concluding the contract, an authorised person of that body as the recipient's temporary supporter. Together, these rules protect the vulnerable party from an agreement that would harm his interests.
The Form and the Content of the Contract
On form the law is unequivocal: under Article 1174 of the Civil Code, a marriage contract is made in writing and certified notarially. An agreement concluded without written form and notarial certification does not count as a marriage contract, so a visit to a notary is a mandatory stage in formalising a postnuptial transaction.
The substantive possibilities are broad. Under Article 1176 of the Civil Code, a marriage contract may be concluded both on property already existing and on property to be acquired in the future. By the contract the spouses may change the legal regime established by law for the spouses' common property. They may unite all of their property, into which property acquired during the marriage is also subsumed — the united property becomes common property — or fully or partially renounce such unification and establish the fractional or separate ownership of each over the property. In this way the spouses opt out of the default statutory regime and distribute the property according to the rule that better corresponds to their own interests.
The Change of the Contract's Terms by the Court
A concluded contract does not remain static: a change of life circumstances may lead to initially balanced terms placing one of the spouses in an extremely unfavourable position. Article 1181 of the Civil Code answers this situation: upon the declaration of the interested spouse, in the presence of respectable reasons, the court may change those terms of the marriage contract which place one of the spouses in an extremely unfavourable position. This norm creates a balance — the freedom of contract matters, but the law does not leave a spouse in a hopelessly unprotected position.
Frequently Asked Questions
Can a marriage contract be concluded after the marriage?
Yes. A marriage contract may be concluded both before the registration of the marriage and after its registration at any time; the difference lies only in the moment of entry into force.
Which form is mandatory?
A marriage contract is made in writing and certified notarially. An agreement formalised otherwise does not acquire the force of such a contract.
Can the contract cover future property?
Yes. A marriage contract may be concluded both on property already existing and on property to be acquired in the future.
What happens if the terms of the contract are extremely unfavourable to a spouse?
Upon the declaration of the interested spouse, in the presence of respectable reasons, the court may change those terms.
How We Help on Legal.ge
A postnuptial agreement stands in close connection with other property documents — the common-property regime, estate planning and the consequences of divorce. The Legal.ge team helps you formulate the content of the contract thoughtfully, choose between property regimes, organise the written form and notarial certification and, where necessary, prepare the question of changing the contract's terms in court. Contact us so that the property interests of your family can be planned completely.