Why a Second Marriage Needs Property Planning
A second marriage almost always begins with a more complicated property situation than the first: the spouses may already own property left from a previous marriage, an acquired business or a home — and almost always there are children from the first marriage whose interests depend on the decisions of the parent's new family. Under the general rule of the Civil Code, property acquired during the marriage is the common property of the spouses — and it is precisely this default rule that a marital agreement replaces with a scheme the spouses define themselves.
The point of planning is that decisions are made while no conflict yet exists between the parties and every variant can be considered calmly and on paper: what happens to each spouse's personal property, how the spouses share family expenses, and what passes to each of them on the termination of the marriage — by divorce or by death. Below we describe in detail what the Code gives to this planning instrument — and where its boundaries lie.
The Marital Agreement — Conclusion, Form and Entry into Force
The spouses may conclude a marital agreement which determines their property rights and duties both during the marriage and upon divorce. The agreement may be concluded both before the registration of the marriage and at any time after it; an agreement concluded before the marriage enters into force upon the registration of the marriage. The form is strictly defined: a marital agreement is made in writing and certified by a notary — an oral arrangement or an ordinary informal document acquires no legal force.
A separate rule concerns a person with limited legal capacity: before the registration of the marriage, such a person may conclude the agreement only with the consent of their legal representative. In the practice of second marriages this most often arises in cases of an elderly spouse — with all its sensitivity — and it is precisely in this type of case that the Code's additional guarantees apply as well: for a spouse who is a recipient of support the agreement must be concluded before the marriage, with the guardianship and curatorship authority and the supporter involved, to the extent determined by a court decision, in the part defined by the corresponding decision of the court, and a concluded agreement may not restrict the recipient's property rights beyond what is determined by the court decision.
What May Be Written into the Agreement — and What May Not
A marital agreement may be concluded both with respect to existing property and with respect to property to be acquired in the future. The spouses may modify the statutory regime of common ownership: they may merge all their property, into which property acquired during the marriage is also included, or entirely or partially renounce such a merger and establish each spouse's share-based or separate ownership of property. The agreement may also determine the conditions of participation in incomes, the procedure by which each spouse bears family expenses, and the property that passes to each spouse upon the termination of the marriage.
The rights and duties provided for may be limited by a defined term or by the occurrence of defined conditions — which gives the planning its flexibility. But there is a boundary that does not bend: a marital agreement may not modify the spouses' duty of mutual maintenance, the parental rights and duties towards children, alimony obligations and — in the event of a dispute — the right to apply to the court. Nor may the agreement contain conditions that place one of the spouses in an onerous position. The practical conclusion: the agreement is a property instrument, and obligations towards a child or a claim for a spouse's maintenance cannot be written into it — these boundaries shape the entire architecture of the planning.
Modification, Termination and the Role of the Court
A marital agreement may be modified or terminated at any time by the mutual consent of the spouses; a unilateral refusal of the marital agreement is impermissible. The agreement terminates upon divorce. The court's corrective role stands apart: upon the application of an interested spouse, where valid reasons exist, the court may modify those conditions of the agreement which place one of the spouses in an extremely unfavourable position — this is the safety balance that counteracts conditions that have become skewed over time.
The Complete Planning Picture — the Agreement together with a Will
Complete property planning for a second marriage is not exhausted by the marital agreement: the agreement settles the property axis between the spouses, but the distribution after death is a matter of succession law and is planned by a separate document — a will. That is why our approach is comprehensive: first we build the inter-spousal regime through the agreement, and then we check how this scheme fits the succession picture that will be in force by law or by will.
For the succession direction, Legal.ge already has dedicated full pages that we treat as part of this planning: will drafting — on preparing the will document itself; statutory-succession questions — on the boundaries that a will cannot cross with respect to children; and inheritance-distribution disputes — on how disputes are resolved when the planning turned out to be flawed. On this page we do not repeat those subjects — we refer you to them, so that the planning of a second marriage is built as one coherent, consistent picture.
Frequently Asked Questions
Below we answer the questions we hear most often on this topic.
Can the agreement be concluded after the wedding?
Yes — the agreement may be concluded both before the registration of the marriage and at any time after it; one concluded before the marriage enters into force upon its registration. The form is the same in both cases: in writing, certified by a notary.
Can obligations towards children be changed by the agreement?
No. The agreement may not modify parental rights and duties towards children or alimony obligations. Protecting the children's interests is done with other planning instruments — including succession planning, for which we have dedicated pages.
What happens to the agreement on divorce?
The agreement terminates upon divorce. Modification or termination is possible only by the mutual consent of the spouses — unilateral refusal is impermissible; and conditions that have become extremely unfavourable may be modified by the court upon the application of an interested spouse.
Is the agreement suitable for an elderly spouse?
Yes, but note: a person with limited legal capacity concludes the agreement before the marriage only with the consent of a legal representative, and for a recipient of support additional rules apply — the involvement of the authority and the prohibition of restrictions beyond the framework determined by a court decision. Such a case must be planned individually.
How We Help on Legal.ge
On Legal.ge you are served by advocates specialising in family law who build the property planning of a second marriage structurally: we analyse the spouses' existing property and the obligations from the first marriage, design an individual marital-agreement scheme and prepare it for notarial conclusion, connect it to succession planning — up to preparing the will and assessing the boundaries of the compulsory share — and tell you which decision belongs in which document. Meet us in the office or online — book a consultation and receive a legal assessment of your situation.