O marriage agreement It allows future spouses or spouses to choose a different patrimonial regime from the legal community, within the limits of the Civil Code. It can clarify the administration and acquisition of property, but it does not automatically eliminate disputes and cannot remove third-party rights through a simple private agreement.
What regimes can the spouses choose
The Civil Code provides for three regimes: the community of property, the separation of assets, and the conventional community. A matrimonial agreement is necessary to choose a regime other than the community of property or to provide for the provisions permitted under the conventional community. The clauses cannot violate mandatory norms, the equality between spouses, parental authority, or the rules of succession devolutive.
The form and the moment in which it produces effects
The convention is concluded by an act authenticated by a notary, with the consent of all parties; failure to comply with the form entails absolute nullity. Concluded before the marriage, it produces effects only from the date of the marriage. If it is concluded during the marriage, it produces effects from the date established by the spouses, or, in the absence thereof, from the date of the conclusion of the act.
Advertising to third parties
For opposability, the convention is entered in the National Notarial Register of Matrimonial Regimes and, depending on the nature of the property, the special formalities required by law are carried out, such as recording in the land registry or registration in the commercial register. The entry in the notarial register does not replace the special formalities. In relation to a third party, the convention may be opposable to the acts concluded with one of the spouses if legal publicity has been fulfilled or if the third party has learned of it in another way.
A secret act that chooses or modifies the matrimonial regime has effects only between the spouses and cannot be challenged by third parties in good faith. In disputes with banks, creditors or debtors, the court verifies the applicable regime, the formalities and the relevant time; the mere invocation of an agreement between the spouses is not sufficient.
Modifying the regime and protecting creditors
After at least one year of marriage, the spouses may replace or modify the matrimonial regime, in compliance with the form and publicity provided by law. The aggrieved creditors may request the revocation of the change within one year from the publicity formalities or from the time they previously learned about it. In addition, creditors may at any time, by way of exception, invoke the inopositionality of the modification or liquidation made in the detriment of their interests.
What changes in divorce and division of property
In the case of divorce, the matrimonial regime ends between the spouses, as a rule, on the date of filing the application. The spouses may request the court to declare the termination from the date of actual separation. The chosen regime influences the analysis of the property: in a property separation, disputes may arise about exclusive ownership or co-ownership by shares; in a community of property, the common mass, debts, and contributions may be discussed. The convention does not decide every property issue alone and does not exclude the verification of documents, data, and evidence.
By convention, a preemption clause can also be included: upon death, the surviving spouse may take possession of certain common jointly owned property without payment before the division of the inheritance, under the conditions of the Civil Code. The clause does not remove the right of the common creditors to pursue the assets in question, and its effects must be analyzed together with the estate and the rights of the heirs.
Legislative references: Civil Code, Articles 329–334, 369–370 and 385.
Informational material; the effects of a convention depend on the chosen regime, the clauses of the act, the publicity given and the actual situation of the goods and creditors.
