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.