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A marriage contract (contract) is an agreement between persons entering into marriage or an agreement between spouses that determines the property rights and obligations of spouses in marriage and (or) in the event of its dissolution.
In accordance with Art. 48 of the Family Code of the Russian Federation, by a marriage contract, spouses can change the statutory regime of joint ownership, establish a regime of shared or separate ownership of both all property and its separate types or property of each of the spouses. They may include in the marriage contract any other provisions relating to property relations. In particular, the procedure for incurring family expenses may be provided, the amount, terms, grounds and procedure for providing maintenance to each other both during the period of marriage and after its dissolution can be determined.
The marriage contract is drawn up in writing and is subject to mandatory notarization.
A marriage contract can be concluded both before marriage (in this case, it acquires legal force from the moment of state registration of marriage), and at any time while people are married (in this case, it is concluded from the moment of its notarization).
A prenuptial agreement may be valid throughout the marriage and may be terminated at any time by mutual agreement of the spouses.
A marriage contract can be concluded under a condition, that is, conditions can be provided, depending on the occurrence or non-occurrence of which certain rights and obligations arise (for example, the birth of a child).
A marriage contract is a kind of bilateral transaction and must comply with the general rules for the validity of a transaction (Articles 154-181 of the Civil Code of the Russian Federation).
What can’t be in a prenuptial agreement
When concluding a marriage contract, you should remember what conditions cannot be included in it:
- A marriage contract cannot restrict the legal capacity and legal capacity of the spouses, their right to apply to the court for protection. This prohibition means that the marriage contract cannot contain provisions prohibiting spouses from filing a lawsuit to change, terminate or invalidate the marriage contract, engage in entrepreneurial activities, receive income, bequeath, accept inheritance, etc.
- The marriage contract is concluded in writing and, according to the draft Family Code, is subject to notarization. Change of marriage by mutual agreement of the parties can be made at any time. In this case, the spouses conclude an agreement in writing on changing or terminating the marriage contract and certify it before a notary. Refusal to use the marriage contract unilaterally is not possible. In case of such refusal, the other spouse has the right to apply to the court with a claim for the enforcement of the contract.
Personal, non-property relations
A marriage contract (contract) is a legal document that governs the relationship between spouses. As a serious document, it can only protect what can be protected by legal levers, and that is why, at least in Russia, it regulates exclusively the property relations of spouses. Since legal levers have their limitations, you will not achieve much with them, non-property relations cannot be the subject of a marriage contract.
Non-property relations — for example, the personal rights and obligations of spouses in relation to their children, the right to communicate with a child in the event of a divorce, the rules of their behavior among themselves, the rules of relations with relatives, family obligations, etc. If people want to regulate these relations, they constitute among themselves Family contract, not legally binding.
If someone in a couple insists that the relationship between them is not in the nature of marriage and family, but wants to streamline the relationship, the couple can enter into an Extramarital Agreement.
Marriage contract in history
The theory of marriage as a contract first arose in ancient Rome (see Marriage in Ancient Rome), Roman law regulated only property relations, therefore all major forms of marriage were considered as an ordinary civil law transaction. And only in the future, church norms give the institution of marriage the character of a mystical sacrament, focusing on the spiritual side.
In Jewish law, the marriage contract (ketubah) includes the obligations of the husband to his wife.
In the Code of Laws of the Russian Empire, the husband was obliged to support the family and at the same time the principle of separation of spouses’ property was established, which provided the spouses with the opportunity to independently dispose of their property.
In translation, in Tsarist Russia, no husband could squander his wife’s fortune without her consent. And in France, according to the then French laws, it was quite possible.