What Is A Prenuptial Agreement And How Does It Affect Children?
Every marriage is made with some kind of implicit or explicit prenuptial agreement. What is known as a prenuptial agreement is actually the marriage agreement. It is a way for future spouses to make clear the terms, mainly economic, that will govern in the event of an eventual separation.
The most frequent prenuptial agreement is the one made to establish a separation of assets. Indeed, the matrimonial property regime, which is the most common type of matrimonial regime, does not require any type of prior agreement. But what exactly is a prenuptial agreement? How does it affect the children? Here are some elements to find out.
What is a prenuptial agreement for?
When a couple is getting married, it may not be very romantic to think about what would happen in the event of a divorce. However, starting a life together with the clear financial side is something very healthy and very positive for future spouses.
In practice, and with the high number of divorces that currently exist, the prenuptial agreement is a tool increasingly used by couples, since it makes things much easier if this were to happen.
In the case of a second marriage, the prenuptial agreement is even more necessary. In effect, it will protect the rights of children and grandchildren from a previous marriage. It is also very useful for self-employed persons and entrepreneurs, as this document will protect your business by excluding the spouse from your control in the event of a divorce.
Ultimately, the prenuptial agreement makes clear the terms in the event of a possible divorce, both in the economic sphere and in that of the children. This document can, in fact, also regulate, although it is less frequent, the measures that will govern the relations of parents with their children.
Types of matrimonial property regimes
The Spanish Civil Code contemplates three types of matrimonial regimes in what refers to the economic thing: joint property, separation of property and participation. The regime known as community property is the one that is applied by default, when no prenuptial agreement has been signed. In this type of matrimonial regime, the spouses decide to form a common patrimony.
The separation of property regime requires the signing of a prenuptial agreement or it can also be adopted during the marriage. With this modality, the spouses decide to manage their assets separately and contribute, according to their income, to the expenses of living together.
Finally, the participation regime, which is the least frequent, also requires the signing of a prenuptial agreement or an explicit agreement during married life. Here, each of the spouses participates in the earnings obtained by the other spouse while the marriage is in force. The participation regime only operates when there are benefits and not losses.
For the marriage to be subject to either of the last two economic regimes, that is, when the spouses want to establish any other agreement other than the joint arrangement, they must do so explicitly. To do this, they have to go before a notary and formalize the deed.
Financial agreements in a prenuptial agreement
The prenuptial agreements can also regulate other types of economic measures between the spouses. For example, compensation can be provided for one of the spouses in the event of a divorce. Or define what will happen to the common heritage in this same case.
The objective is to decide what will happen to the estate of the spouses in the event of a divorce. The advantage of doing it with a prenuptial agreement is that, at that moment, the relationship is in a good moment. The idea is to make decisions outside of a context of personal crisis, objectively and in good faith.
Parent-child measures
The measures that will govern the relationship between parents and children in the event of a breakdown can also be established in a prenuptial agreement, although this situation is unusual. For example, custody, visitation and maintenance can be regulated.
However, these agreements can be reviewed by the corresponding court, in the event of a divorce. Indeed, since they are procedural public order measures that affect minors, the Family Court can modify them to protect the interest of the minor. Thus, a judge can confirm or invalidate those agreements.
