María and Javier got married a couple of months ago. They did it in a simpler ceremony than they would have liked due to the capacity limitations imposed by the pandemic, but “just as in love and very convinced” of the step they have just taken as a couple after five years of dating. «We have a common life project. Our idea is to have children and start a family, but we do not want to give up our professional career or for this decision to pose a problem in our relationship, ”this Madrid couple openly confesses. They are both in their thirties with a promising future ahead of them. Javier’s in the world of finance and María’s in the fashion sector. But also with a past and an unequal economic position. To this day, he practically doubles her income and is also the owner of the house in which they are going to establish their residence.
Faced with this situation and advised by the mother of the bride, the couple decided to sign a prenuptial contract to make “things clear” and avoid “problems” in the future in the event of separation or divorce. “Before we made the decision to get married, we talked a lot about what marriage was going to mean in our relationship, not only on a personal level but in other spheres of our lives. Obviously, we have not married the idea of divorcing, but the data is there and we cannot turn our back on them, “they argue bluntly. And those data that María and Javier refer to say that 56% of marriages fail. Perhaps that is why, and despite the fact that it is a more deeply rooted tradition in Anglo-Saxon countries than in ours, more and more Spanish couples decide to sign this type of agreement, which to some will only sound like a series of North American lawyers or directly thinks that they are millionaire things. Nothing to see. “The problem is that many times people get married without having previously talked about such important things as managing the care of their children in case they want to have them (are they going to hire an external person or is one of the two going to reduce their working day? who? for how long? …) or how it is going to contribute to the family economy (if I earn five and you two, do we put the same amount in the common account each month or each depending on of their income? Or I take care of paying the mortgage and you of the house expenses? …) If all these circumstances are previously agreed in an agreement, the couple saves a lot of trouble in case of divorce, “he explains Isabel Winkels, an expert lawyer in family law and responsible for the prenuptial agreement signed by María and Javier.
How do we pay the expenses?
This type of pacts, also called agreements in anticipation of rupture, can be drawn up both before and after married (postmarital) and do not need to be raised to a public deed (notary and civil registry) as occurs with matrimonial agreements (economic regime that regulates marriage; separation of property, community …), although all the experts consulted recommend registering these agreements before a notary public. Broadly speaking, “it is a contract signed by both parties in which the rules by which we want to regulate our relationship are specified: the matrimonial property regime, the contribution that each one will make to support family responsibilities, the conditions the use of the family home, the dedication of each one to the care of the children and their financial compensation and all those issues that need to be reflected and agreed. The prenuptial agreements are also a way to protect the assets of each spouse “, summarized in Winkels Abogados.
In the case of María and Javier, married under the participation of property regime, the prenuptial agreement, which they raised to a public deed together with the capitulations, contemplates, for example, that if they divorce she agrees to leave the family home and go to to live in another property or rent located near that of her ex-husband, to which Javier would contribute 50% of the mortgage or lease in case they had children. This is their option, but each couple can establish the conditions that best suit them based on their personal circumstances and even modify the terms of the agreement at any time.
“The task of establishing both the financial regime of the marriage and any other provision of breakup agreements should be encouraged as something positive. In fact, if the rules were agreed in advance, many of the disputes faced by the couple when they decide to end the marriage would cease to exist, “added Debelare Abogados. It should be clear that the prenuptial agreement does not replace in any case the capitulations. On the contrary, it is a complement. The most sensible thing to do is to do both and raise them to a public deed, ”the family law experts agree.
Give up the pension
But, to what extent are the agreements reached in a prenuptial agreement binding in the event of a breakup? More than we think. If in the agreement both parties waive a future compensatory pension this goes to mass, regardless of what happens in the marriage. In the same way, if one party agrees to compensate the other for a specified period of time or to do so for life, it is also respected ”, says Isabel Winkels.
Another thing is the custody of the children, where it is the judge who has the last word regardless of the agreement. In any case, the agreement can articulate aspects such as the intention of the couple to have joint custody or even specify a maintenance system in which the amount to be contributed is specified. For example, both parties may agree that the amount allocated to the support of the children in common cannot exceed 30% of the income of the person obliged to pay or that they will not move from the city. “It is a declaration of intent taken at a time when there was no conflict between the couple, so the judge usually takes it into account,” the experts explain.
Regardless of the circumstances of each couple, Isabel Winkels advises drafting a prenuptial agreement “yes or yes” – the price is usually around 500 euros on average – in the following situations. “It is essential whenever the spouses are of different nationalities to agree on which legislation applies to marriage and which are the competent courts. That is, if you marry a person from the United Kingdom, it is important to decide whether we want to abide by British or Spanish law. It is also important to sign an agreement in anticipation of rupture when one of the parties has a wealth much higher than the other, if one of the two has children from a previous marriage or when one of the parties has a debt or legal obligation that could affect to the other », says Isabel Winkels.
It is also interesting to know that if any of the parents of the couple intends to donate an amount of money, they must do so in their child’s private current account, because if they enter it in the common it can be understood that the will is to give it to the two and would compute as gains. “In case you do not have your own account, it is advisable to specify ‘donation exclusively for …’ Because one of the most common problems that we find in divorce cases – admits the Madrid lawyer – is not being able to prove what clients had before marriage. Regardless of the economic regime that is signed, it is absolutely advisable to make an inventory of the assets of each party before getting married. So much money in the account, a car, a house with 20% of the mortgage paid … «.
At Debelare Lawyers it is very clear: «Signing capitulations and agreements may not be the most romantic thing in the world, but it is the most sensible thing to do. ‘Do you want to capitulate with me?’, Could be a good way to ask our partner for marriage. It would be like saying: let’s do a life project together, with love, enthusiasm and, at the same time, with a head ».
What suits me best; marry in ganalcial or in separation of property?
The matrimonial agreements are the economic regime by which the marriage will be governed. They are managed in a notary’s office (60 euros on average) and it is mandatory to raise them to a public deed. To be valid, they must be signed within a maximum period of one year before the marriage is celebrated or at any time after they are married. If the couple does not sign the capitulations, the supplementary regime that is applied in most cases is that of community property, an option that is not always the one that best suits the marriage. As a general rule, experts advise signing a separation of property, but each couple must choose the option that best suits their circumstances.
Community property regime
As specified in the Madrid notary’s office Orense 8, “this agreement means that the gains obtained in the marriage belong equally to both people. Consequently, in the event of divorce, the acquired assets must be divided equally. ” This option is usually recommended for marriages in which one of the parties renounces his professional career or his job to dedicate himself to taking care of the house or the children.
Separation of Property
It is the most common. “Each person retains their individual rights to the assets acquired before, during and after the marriage. Therefore, neither of the spouses will be able to claim that they be distributed ”, they explain in the Madrid notary’s office. One of the advantages of this regime, in addition to facilitating the division of assets in the event of divorce, is that “there is no risk of incurring the debts of one of the spouses that endanger family assets.”
Share of goods
According to the Civil Code, in this regime “each of the spouses acquires the right to participate in the gains obtained by their consort during the time that said regime has been in force.” In other words, both parties keep their assets separate while they are married, but if they divorce each can participate in the gains obtained by the other during the marriage in the percentage that both parties agree on. “This is a highly recommended option for couples in the liberal professions,” says Isabel Winkels.