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.