The Concept of the Marriage Contract and the Time of Its Conclusion
A marriage contract is the instrument for determining the property future of the spouses in advance. 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. In terms of timing the law grants freedom: under Article 1173, a marriage contract may be concluded either before the registration of the marriage or after its registration at any time. A contract concluded before the marriage — the classic form of advance planning — enters into force from the registration of the marriage, which matters particularly for those who wish to fix the complete picture of their property relations before the wedding. Such advance planning allows future conflicts to be discussed while trust between the parties is intact, rather than once the relationship has become strained. In practice a prenuptial contract is often perceived not as a sign of distrust but as a sign of responsibility.
The Form of the Contract
The requirement of form is strict and unambiguous: under Article 1174 of the Civil Code, a marriage contract is made in writing and certified notarially. This means that an oral agreement or a non-notarial document does not acquire the force of a marriage contract. The notarial form performs the function of reliability and evidentiary force at once — later, when the terms of the contract become the subject of a dispute, it is precisely the notarial certification that will be the basis of interpretation. The notary confirms that the contract was formalised according to the procedure established by law, and any misunderstanding between the parties is resolved at this stage through consultation. The requirement of written and notarial form is strict precisely because the contract is a document of long-lasting effect whose reliability must be preserved years later.
The Property Content and Family Expenses
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 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, or fully or partially renounce such unification and establish the fractional or separate ownership of each over the property.
The substantive possibilities widen further under another provision: under Article 1177, the spouses are entitled to determine by the marriage contract the terms of their participation in the incomes, the procedure of bearing family expenses by each, and the property to be transferred to each spouse upon the termination of the marriage. In this way the contract arranges both the current and the final property questions connected with the end of the marriage. At the current stage this means determining how much each spends on the family and how the income is shared; at the final stage it means fixing in advance which property passes to which spouse when the marriage ends. This two-sided approach turns the contract into a tool for both everyday life and major changes.
Prohibited Terms and Limits
The freedom of contract has limits set by law. Under Article 1179 of the Civil Code, a marriage contract cannot change the spouses' mutual maintenance obligation, the rights and duties of parents towards children, the alimony obligations and — in case of dispute — the right to apply to court. Nor may the contract contain terms that place one of the spouses in a grave position. These limits are unalterable: personal and family relations cannot become the object of the contract, and the creation of a defenceless party is prohibited. The essence of the prohibition is that property freedom must not become a means of restricting vital interests — the care of children, alimony or judicial protection. Therefore, if such a term does appear in the contract, it contradicts the law and cannot fulfil its intended function.
Frequently Asked Questions
When does a contract concluded before the marriage enter into force?
A marriage contract concluded before the registration of the marriage enters into force from the registration of the marriage.
Without which form does the contract not exist?
A marriage contract is made in writing and certified notarially; any other form does not give the contract its force.
Can alimony obligations be changed by the contract?
No. The spouses' mutual maintenance obligation, the rights and duties of parents towards children and the alimony obligations cannot be changed by the 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.
How We Help on Legal.ge
Drafting a marriage contract demands a precise determination of the balance of property interests. The Legal.ge team helps you plan the structure of the contract, choose the property regime, take the prohibited terms into account and organise the notarial form. Contact us so that your contract fully corresponds to the requirements of the law and leaves no room for future misunderstandings.