Prenuptial Contract: What is it and when to do it

A wedding is a special moment, a celebration of love, full of preparations and in need of planning, but it is important to understand that legal issues are also involved in this process and must be discussed before going to the altar.

One of the somewhat delicate legal issues to be analyzed by the bride and groom is the prenuptial contract, which is a document that has the function of regulating all the couple’s property issues.

Thinking about discussing future financial issues with the partner may not seem very pleasant, but the couple must face the situation with serenity, understanding that the evaluation of these issues is a form of protection for the future of both.

“It’s not inelegant. It is very important to prevent conflicts and also to have the opportunity to celebrate a prenuptial agreement that reflects the intention of the bride and groom regarding the assets that will be acquired during the marriage”, says lawyer Ana Luiza Nevares, specialist in Family Law.

Why make a prenuptial contract

When this document is not made, Brazilian law provides that the property regime applied in the event of divorce will be that of partial separation, when only the property acquired after marriage is divided between the couple.

However, other options for property regimes that may be preferred by the future couple, such as the regime of total community, in which all property, including those that each already had before marriage, will be the property of both; and total separation, which allows the married couple to continue to have individual assets.

To adopt a property regime different from the partial separation, which is standard, the bride and groom need to go to a lawyer and draw up the prenuptial agreement so that this document can be presented at the time of starting the marriage process at the registry office.

Prenuptial contract rules

The prenuptial contract, in addition to determining the property regime, can be used to create rules about the administration of financial investments, who will bear what expenses, what is the limit on the amount of money the future couple can give to the each one’s family of origin, or even the division of assets, the furniture of the house and who will pay what kind of expenses related to the children in case of divorce.

Fabiana Domingues Cardoso, lawyer, professor at PUC-SP and author of the book Regime of goods and Prenuptial Pact, says that in the last three years people have sought to establish more rules for life together and with that the profile of prenuptial pacts has changed. .

Some rules that are also being established in prenuptial agreements, but which are still controversial are: keeping or changing surnames, children’s religion, division of domestic tasks, compensation for infidelity or determination of an open relationship.

However, anyone who prepares a prenuptial agreement that talks about matters other than property issues may run the risk of not finding a notary that accepts to perform the marriage because the topic is not explicit in the law, warns Eduardo Tomasevicius, professor of civil law at the University of São Paulo. Paul.

An important rule when drawing up the prenuptial contract is not to create clauses that disrespect the highest law of the country. Brazilian legislation establishes that fidelity is mandatory in marriage, so the pact made between a couple should not provide for the acceptance of extramarital love relationships. Compensation values ​​in case of treason are also not legal, since this decision is up to a judge when the judgment of moral damages already provided for by law is made.

The preparation of a prenuptial contract is a demonstration of the couple’s maturity, which is able to calmly decide on the planning of their future and demonstrate their affinity for projects and the ability to have a happy and harmonious life together.