Does a prenuptial agreement make sense?

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A prenuptial agreement is a contract between persons planning to enter into a marriage relationship or who are already married. The document defines the powers and obligations of both spouses regarding property. The terms of such an agreement regulate the ownership and disposal of it even after the termination of the marital relationship. In this article, we will look at the main pros and cons of a prenuptial agreement, weigh the pros and cons, and help you decide whether to enter into one.

Features of a marriage contract

With the help of a contract, you can change the regime of joint ownership established by law, change the system of common or shared ownership, and also provide for other situations related to property relations in marriage.

In addition, the provisions of the document can determine the division of family income and regulate the maintenance of both spouses both during marriage and after it.

Its main points are:

Regime of ownership of property acquired during or before family life;
Rights and obligations of partners for mutual financial support;
The procedure and timing for changing provisions;
Conditions for termination of the agreement.

Its main features that characterize its status are the following:

It cannot regulate non-property relations;
It requires a written form certified by a notary;
It can be issued before and after marriage registration;
It can be terminated by agreement of both parties;
It is not subject to state registration.

Disadvantages of a prenuptial agreement

Of course, there are no ideal solutions for all occasions. And a marriage contract, like any phenomenon, has its negative sides.

Therefore, now let’s discuss the disadvantages of a prenuptial agreement:

Well, firstly, many believe that it is unethical to mix material calculations with high feelings and at the same time also think about a possible divorce.
Let’s agree that when getting married, you don’t want to think about a possible divorce and divide property and money in advance. But, in our opinion, the conclusion of a prenuptial agreement cannot be considered a demonstration of an attitude towards divorce or a sign of distrust in the other half. This is just a document that will help you regulate your property relations in a civilized way and avoid many unpleasant moments. By the way, during marriage too. This is especially true for those couples where one spouse may potentially be financially dependent on the other. A prenuptial agreement will act as financial insurance for the dependent party and will help to receive adequate financial resources for personal needs, rather than begging for pennies for pocket expenses. At the same time, for the second party, a marriage contract is also necessary in order to protect itself from the encroachments of “hunters for other people’s fortune.” In short, this minus is relative, according to experts of the Own It Easy project.
Among the disadvantages of a prenuptial agreement, many cite its high cost.
And you can’t argue with that - notary services are not cheap! This must also be taken into account in case something suddenly needs to be changed in the marriage contract or supplemented. Changes and additions will have to be made through the conclusion of an additional agreement, and it must also be certified by a notary for a fee.
The next disadvantage of a marriage contract is usually noted by ardent supporters of contractual relations in marriage.
This disadvantage stems from the specifics of the legislation of the Russian Federation, since, unlike many foreign legal systems, according to Russian laws, a marriage contract regulates only property relations. The prenuptial agreement cannot stipulate who the children will stay with, how often you will go on vacation, or who will walk the dog. Only issues related to the ownership and disposal of property.
Some people are confused (and they consider this a disadvantage!) that a marriage contract cannot be terminated unilaterally, but if there are grounds for this, it can be challenged in court. For example, if one of the spouses is placed in extremely unfavorable conditions. It is worth noting that this is quite difficult to prove. This is to some extent facilitated by the following disadvantage, namely:
The possibility of ambiguous wording when drawing up a contract, which leads to the complexity of legislative regulation.
When drafting a prenuptial agreement, it is very important to have clear language. Otherwise, different interpretations and ambiguous phrases may lead to contract disputes and litigation.
This disadvantage can be easily overcome with the help of competent lawyers who can be involved in drawing up a marriage contract. Alternatively, you can turn to our “Contract Formation” service or to the “Easily Own” specialists for personal advice on your specific situation.

We hope that we were able to show you that the marriage contract, the pros and cons, which we have considered, still definitely has more positive aspects.

For those who continue to doubt, we list the most common everyday situations in which concluding a marriage contract is most relevant.

What conditions cannot be included in the contract?

The following provisions may not be included in the agreement:

Regulating personal relationships between husband and wife;
Reflecting the obligations of spouses and their rights in relation to joint children;
Limiting the capacity and legal capacity of each of the parents;
Prohibiting recourse to judicial authorities for termination, modification of a marriage contract or recognition of it as invalid;
Restrictions on the rights of the parties to conduct business, draw up wills, register inheritance property, and receive individual income.

Main advantages

An agreement between spouses has many advantages, which include the following circumstances:

It can be drawn up before marriage, as well as after its registration on any day. Its presence will protect you from conflict situations and disputes during the division of property in the event of a divorce. In addition, the close relationships that accompany the creation of a married couple will make it possible to provide for the interests and rights of all parties without emotions.
The agreement allows you to decide the ownership of property at different periods of the relationship: before the registration of a family union, during and after it. Owned personal property acquired before marriage will remain the individual property of the party to whom it belonged. The agreement can determine the fate of property acquired in family life or establish its share, indicating the size of the parts, or preserve common joint property.
He can establish the ownership of things received as a gift. In order to avoid disagreements regarding gifts, it is better to stipulate their further nature and what will be due to whom in the event of separation.
By concluding a contract, in the event of a divorce, there will be no disputes regarding the division of property. As a rule, it causes a lot of trouble, and the more acquired during the family union, the more fierce the struggle develops between the ex-husband and wife. And if you still can’t reach an agreement, you have to go to court and go through the unpleasant process of judicial division of your property. A formalized agreement allows you to avoid such torment.

For example, before a man got married, he started a company. During the period of family life, funds were withdrawn from the family budget and invested in the development of entrepreneurship. After the breakup of the marriage, the wife demanded part of the value of the business. In the process of litigation, a lot of money had to be spent on conducting assessments, analyzing documentation, and calculating income over time.

The concluded agreement would save the court disputes if it established what part of the property the wife could claim.

Here are a few more advantages:

With the help of a contract, you can determine the financial capabilities of a married couple. For example, estimate cash receipts, determine responsibilities for their expenditure, plan large acquisitions and divide them. The document can specify any points that provide for the real state of the couple’s financial affairs.
The agreement helps resolve the issue of debt obligations and loans. They are also subject to separation in the event of divorce. The contract can stipulate which of the parties owes the debts and who must fulfill them.
The document may contain the distribution of family income and expenses. It helps organize the family budget and distribute income. This can be done in great detail, even including the purchase of groceries and payment of utilities.
A marriage contract may establish the maintenance of a disabled or needy husband/wife in the event of separation. In addition to the legally established grounds for maintaining the second spouse, he can significantly increase the amount of financial assistance received, establish the amount and timing of receiving financial support.

When drawing up a legally correct and complete document, checking the legal capacity of the parties and notarizing a marriage contract, you can count on the transparency of contractual relations and the security of their regulation between the participants of a married couple.

Pros of a prenuptial agreement

Let us first list the advantages of a prenuptial agreement:

Firstly, since this document is not mandatory and is drawn up only by mutual consent of the spouses, there is a high probability that the parties will be able to clearly define and, if necessary, defend their position before its conclusion. And this is a guarantee that property disputes can be avoided in the future.
The second clear advantage, which we have already mentioned, is the ability to avoid disputes and litigation related to the division of property in the event of a divorce. Divorce is almost always an unpleasant and quite painful procedure, and if, in addition, it is not possible to agree on who will get the apartment and who will get the dacha, everything becomes even more difficult. Agree, a prenuptial agreement in this critical situation can greatly help save your nerves!
Another advantage of a marriage contract is the ability to deviate from the principle of equal shares of spouses in common property and determine the shares at will or establish a regime of separate property. For example, one of the spouses can transfer all real estate to the other, and keep the existing securities and shares for themselves. And if a separate property regime has been established, then the owners of this or that property are immediately determined.
This leads to an additional significant advantage of a marriage contract - the ability to independently, without the consent of the other half, dispose of your property owned by virtue of the marriage contract. For example, a marriage contract stipulates that ownership of a non-residential building belongs to the spouse, which he decided to sell or rent out. In this case, the spouse’s consent will not be needed; it will be enough to attach the marriage contract.
An undoubted advantage is the fact that a marriage contract can be drawn up at any time after marriage.
A marriage contract can be signed before marriage, but it will acquire legal force only from the moment of state registration of the marriage in the registry office. If a marriage contract was concluded by the spouses during the marriage, it will begin to be valid from the moment it is certified by a notary. So if you agreed on everything and signed a marriage contract, but forgot to have it certified by a notary, then this document will not help you in the event of a divorce.
Another plus: in the marriage contract you can provide for the fate of any property (existing and future; joint and personal).
In practice, this means that if spouses plan to purchase something, then in the event of a divorce, with such an agreement they can stipulate who will get the long-awaited purchase. Or, for example, at the time of marriage, one of the spouses owns an apartment, which in the event of a divorce can either remain with him or be transferred to the other spouse according to the marriage contract.
More details
Read also: Termination of guardianship and trusteeship of minor children
Personal property includes not only property acquired before marriage, but also received during marriage as a gift or inheritance.
For example, a spouse is given a car during marriage, and it is her personal property, but the marriage contract stipulates that this car will belong to the spouse in the event of a divorce. It's the same with inheritance. By drawing up a marriage agreement, you can provide that the inheritance will belong to one of the spouses or become joint property.
A marriage contract can provide for the distribution of family income and expenses, including the family’s financial capabilities in the future. The agreement allows you to describe everything in detail: what income is joint and what is personal; what this or that money will be spent on; who will pay utilities, and who will buy groceries, etc. And this is the obvious advantage of a marriage contract, since in this way mutual unjustified expectations, claims and reproaches, which often cause a break in relations, are removed!
Another advantage of a marriage contract is the ability to provide for the regulation of debt obligations, including loan payments. For example, if a married couple purchases an apartment with a mortgage, then the marriage contract can stipulate that payments are made by one of the spouses, while the apartment will belong to both of them on the right of joint ownership; or immediately determine the size of everyone’s shares. In the future, this will avoid mutual claims between the parties regarding loan repayment.
Finally, a marriage contract can provide for the obligation to support a disabled spouse. Here we are talking about the fact that you can set the size of payments, or their frequency and timing. This opportunity allows the disabled spouse to feel more confident and not worry about what the relationship between the spouses will be like during the divorce.

Main disadvantages

In addition to the positive aspects, the document also has negative aspects. These include:

Most residents of our country consider it selfish and indecent to discuss material matters on the eve of a wedding. Although signing obligations in relation to a friend indicates honesty and mutual understanding between family members, and not about false concepts of decency.
Payment for notary services. Execution of an agreement, its termination or amendments to it requires notarization. Frequent visits to a specialist will entail considerable costs.
Changes in regulations. Significant amendments may lead to changes in the drawn up contract or its termination altogether, since it may simply be invalid. There are known situations where, under such conditions, the document lost its relevance, and the separating spouses had to divide property in court.
The difficulty of legislative regulation of family relations. When drawing up a contract, it is difficult to provide for all aspects of family life. Well, if you need additions to the marriage regulations, you will have to contact the notary’s office again.
Controversial provisions of the contract. Points must be clearly worded to avoid double interpretation. Uncertainty may lead to litigation and disputes, as well as invalidation of the document. To avoid such situations, you should contact specialists who are highly qualified and experienced in resolving such cases to draft a legally competent and detailed text.
The agreement regulates only property relations. When it is concluded, it is impossible to introduce provisions regulating other aspects of family life. For example, questions regarding the maintenance of children in the event of a divorce and the procedure for dividing property after the death of one of the parties are prohibited by law.

There is also a ban on describing the personal relationship between husband and wife. If such aspects are discovered, the agreement may be invalidated in whole or in part.

Divorce is expected in advance. Psychologically, such a document sets up family members to separate, thereby undermining the power of attorney and destroying mutual understanding between them. When concluding it, each party tries to protect itself in the event of separation. But it is probably not very reasonable to expect that divorce is impossible. And taking care of protecting your interests in advance is much more advisable than living with disappointments and financial losses.
Coercion to sign. There are no guarantees of transparency in the contracting process. Sometimes, even with the outward voluntariness of its execution, there is a possibility of manipulation or pressure from one party to the agreement or family members. This often concerns marriages registered by couples with unequal financial status.
Acquisition of legal force. When an agreement is concluded before the start of family relations, it comes into legal force only from the moment of their registration.

Who and when can conclude

Russian legislation establishes the possibility of concluding an agreement for couples who have registered their marriage in the civil registry office. It begins to operate after its notarization or from the date of registration of the marriage union.

Sometimes a family that does not plan to formalize their married life wants to draw up a contract. It will not have legal force. Analysis of judicial practice indicates that without official registration, such a document does not establish the regime of ownership and disposal of property.

A marriage contract is not the only document that regulates property relations after a divorce. Sometimes it is more expedient to enter into an agreement on the division of property.

Arbitrage practice

As a rule, disputes in courts regarding marriage contracts boil down to the fact that one participant in the transaction has violated his obligations enshrined in the contract, and the second participant demands to stop illegal actions. The second reason for litigation is the question of whether a contract is void or not.

Thus, in the Kirovsky District Court of Novosibirsk in September 2021, the court considered a case in which the husband demanded that the marriage agreement concluded between him and his wife be invalidated.

The essence of the requirements was that, under the terms of the agreement, all joint assets that the wife and husband acquired in the marriage union are transferred to the spouse. According to the husband, this fact puts him in a very unfavorable position compared to his wife.

The court examined the evidence presented during the hearing and came to the following conclusions:

According to clause 3 of the marriage agreement, any assets that become the property of the marriage partners are considered to belong to the spouse in whose name the transaction is executed or in whose name the property is registered.
Clause 10 of the same agreement establishes that this contract cannot be considered an enslaving transaction or put any of the spouses in a very unfavorable position.
The plaintiff has no evidence that he is disadvantaged by the execution of the disputed contract.
The plaintiff agreed to the signing of the contract and agreed to its terms, as evidenced by his signature.
The deterioration of the financial situation of a party to the contract does not fall within the definition of the concept of “significant change in life circumstances.” This is due to the fact that by showing care and prudence in behavior, a person has the opportunity to anticipate possible risks that could lead to financial losses.

Thus, the claim was rejected and the contract was declared valid.

Disputes over a separation agreement typically arise when one party, after entering into the agreement, is not satisfied with its terms. In September 2021, the Zheleznodorozhny District Court of Rostov-on-Don was considering a case to invalidate the division agreement.

The plaintiff's claims were as follows:

Shortly before signing the agreement at the notary, her husband severely beat her. As a result, she was scared, humiliated and in pain. However, she did not contact either the hospital or the police.
Read also: There are no “ex-dads”. Communication with a child after divorce
After the beating, she left her husband and lived with friends and relatives, since the plaintiff did not have her own home. She also had no income because she worked in her husband's company.
Taking advantage of her psychological state, the husband proposed to conclude a division agreement on terms unfavorable to the plaintiff. She agreed to these conditions because she was afraid of violence and reprisals against herself.
The plaintiff could not familiarize herself with the text of the agreement in advance, but saw the document only from a notary. In addition, the notary did not explain to her the terms of the agreement.

The husband's representative did not agree with the plaintiff's arguments, saying that she understood all the terms of the deal and signed it.

As a result of considering the parties' arguments, the court found:

The husband gave his wife an apartment, a parking space and a sum of money in the amount of 8,200,000 rubles. Considering that the total valuation of the common property is slightly more than 30,000,000 rubles, the terms of the agreement cannot be enslaving for the plaintiff.
A psychological examination showed that at the time of signing the agreement, although the spouse was in a state of tension, this state could not affect her mind and deprive her of the ability to recognize reality and understand the consequences of her actions. Consequently, she could resist pressure from third parties.
The testimony of witnesses cannot be reliable, since they were not present during the beatings inflicted by the husband on his wife, and they know about the beatings from the words of the wife.
It is impossible to say reliably whether the beating actually took place, since the wife did not contact doctors or police officers.
The wife took possession of the apartment transferred to her under the agreement, registering it properly. This indicates that she acted consciously at the time of entering into the agreement.

Based on the above facts, the judge concluded that the claim was unfounded and should be dismissed.

In what cases is it advisable to conclude

It must be concluded if:

One of the spouses owns a business and he may suffer when dividing property;
There is a desire to provide decent support for children born in marriage;
There is no point in spending huge amounts of money on a qualified lawyer;
I would like to save my nerves during the divorce process;
One of the parties is supported financially by their spouse;
There is no confidence in the adequacy of the behavior of the other half;
The husband/wife has an excessive craving for financial values.

To summarize, I would like to note that a marriage contract is an effective tool for regulating material relationships in the family. It will benefit those spouses who want to preserve and increase their property and financial assets, for whom the costs of legal support and notary services are not significant compared to possible property losses due to family conflicts. This category includes persons conducting entrepreneurial activities or having significant assets in their possession.

But family members with average incomes can also take advantage of the contract, since its provisions can regulate the material components of married life