prenuptial agreements , antenuptial agreements , or prenuptial agreements , commonly abbreviated as prenup or prenupt b>, is a contract entered before marriage, civil union or any agreement before the main agreement by persons intending to marry or contract each other. The content of prenuptial agreements may vary widely, but usually includes provisions for property distribution and spousal support in the event of a divorce or marriage breakup. They may also include the term for confiscation of an asset as a result of a divorce on the basis of adultery; further guard conditions may be included as well. Should not be confused with the settlement of the historic marriage concerned not primarily with the effect of divorce but with the establishment and maintenance of dynastic families.
In some countries, including Belgium and the Netherlands, prenuptial agreements not only provide for divorce events, but also to protect some property during marriage, for example in the case of bankruptcy. Many countries, including Canada, France, Italy, and Germany, have a marriage regime, in addition, or some cases, in lieu of prenuptial agreements.
Postnatal agreements are similar to prenuptial agreements, except that they enter after a married couple. Historically (and sometimes still today) prenuptial agreements are called marriage contracts . Marriage itself is often seen as a contract.
Video Prenuptial agreement
Legal recognition
The law varies between states and countries in both ways of setting it up and whether they will enforce the agreement.
Africa
South Africa
In South Africa, civil marriage or civil unions are, automatically, marriages in the property community . To marry of the property community , the parties must sign an antenuptial contract before the notary before their marriage and the contract must be registered at the Deeds Office within three months from the date of signing the contract.
When married outside the community, the parties have the option to marry with the application of the accrual system or without the adoption of the accrual system .
In the event that parties are married without accruals, each plantation will remain separate and no party will have ownership claims against another based on marriage.
If the parties marry the application of accruals, each plantation will remain separate during the marriage subsistence. After the dissolution of marriage, whether by death or divorce, a partner with a lower accrual will have a claim against a partner with a larger accrual for half the difference between their accrual values.
Eurasia
Asia
India
In India, prenuptial agreements are very rare and have no governing law. However, as the rate of divorce increases, people show an increased interest in them. Some lawyers argue that prenuptial agreements do not have legal sanctity in India. However, some forms of contracts are signed in some cases, usually among prosperous citizens. However, the agreement must be reasonable and does not violate any pre-existing laws such as the Hindu Marriage Law. Indian courts allow a memorandum of understanding to be settled during the divorce. However, no court has been asked to enforce the prenuptial agreement.
These agreements may be under Indian Contract Act 1872. Section 10 of the Contract of India Act states that the treaty shall be considered a contract if it is made with the free consent of the parties. However, Article 23 of the same law states that contracts can be void if they are immoral or contrary to public policy.
Goa is the only state of India where premarital is legally enforceable, as it follows the Portuguese Civil Code, 1867. A prenuptial agreement may be signed between the two parties at the time of marriage, declaring the ownership regime. If prenuptial has not been signed, then the marriage property is only divided equally between husband and wife.
Thai
Under Thai law, prenuptial agreements are recognized by the Commercial and Civil Code of Thailand. A valid and feasible Thai prenuptial agreement requires by law where:
- premarital content made in Thailand can not violate any law or morals;
- both husband and wife candidate must understand the content of prenuptial;
- Pre-marriage in Thailand must be made before marriage, a contract between husband and wife about private property and jointly done after marriage registration (post-marriage) void;
- both husband and wife candidates must sign the marriage before at least 2 witnesses and the agreement must be entered into the Marriage Register together with the marriage
This condition is found in clause 1466 of the Commercial and Civil Code of Thailand.
Europe
Prenuptial agreements have long been recognized as valid in some European countries, such as France, Belgium, the Netherlands, Germany, Poland, Switzerland, Sweden, Denmark, Norway and Finland. While in some of these countries there are limitations on what will be seen by the courts as applicable or applicable (eg Germany after 2001, where appellate courts have indicated this), written and well-initiated contracts, freely agreed, can be challenged by, for example, invoking circumstances in which a marriage breaks or one part behavior. In France and Belgium (as in Quebec, which has the same tradition of justice) a prenuptial agreement should be established before a notary.
In many countries mentioned, premarital can also protect property that is not shared and money withdrawn into bankruptcy and may serve to support lawsuits and settlements during marriage (for example if one part has been sold or wrongly mortgaged a piece of property that has been ruled out by partner).
Ukraine
Subject to the provisions of Section 10 of the Family Code of Ukraine, marriage relations, rights and obligations of spouses may be governed by the Marriage contract also if the spouses wish to settle their property relations in other ways then granted by the Family Code of Ukraine.
A marriage (pranikah) contract can be concluded by a woman and a man, who apply for their marriage registration as well as by a spouse. A minor, who wishes to conclude a marriage contract before marriage registration, is to have signed consent from his parent or custodian certified by a notary.
Many of the provisions of this section of the Family Code of Ukraine provide sufficiently broad terms regarding the form and content of marriage contracts and the same procedural manufacture issues are governed by the proper Instruction of the Ministry of Justice of Ukraine concerning the procedure of Notarization of the marriage contract as well as to the extent required is a notary.
The imperative requirement with respect to the contents of the marriage contract is provided by section 93 of the Family Code of Ukraine, which states that the marriage contract regulates the property relations between the spouses, determines their property and obligations. The marriage contract may also determine the ownership and duties of the spouse as a parent, but with certain limitations. The couple's personal relationships can not be governed by the marriage contract, as well as the personal relationship between their spouse and their children. This rule is also provided by section 93 of the Family Code of Ukraine. The marriage contract, which reduces children's rights and places one's spouse to a poor country, is not permitted by the above important rules. Within the framework of the marriage contract there is no partner who can acquire immovable property or other property, which requires state registration.
United Kingdom
England and Wales
Prenuptial agreements have historically not been considered legally valid in England and Wales due to the reluctance on the part of the judiciary for reasons of public policy. The case of the Supreme Court of 2010 Radmacher v Granatino, invalidated the previous legal framework on them to recognize the changing views of society and the judiciary on the personal autonomy of married couples. Pre-marriage agreements will now be upheld by the courts as part of their discretion in the case of financial settlement under section 25 of the Matrimonial Causes Act 1973 during the three stages of the Radmacher test being met and considered fair to do so, keeping in mind the interests of every child of the family. Radmacher declares that the court will effect the marriage agreement freely entered by each party with full appreciation of its implications unless, under applicable circumstances, it is unfair to enter into an agreement with such parties. This case provides a large number of relevant guidelines for all cases of marriage agreements that have taken place since 2010.
The 2014 Legal Commission Report on Matrimonial Property generally receives a decision at Radmacher and recommends the establishment of a 'marriage certification qualification' regime by Parliament that will create a fully binding pre-marriage agreement as long as certain conditions are met. Commission recommendations have not been implemented.
North America
Canada
Prenuptial agreements in Canada are governed by provincial law. Every province and territory in Canada recognizes prenuptial agreements. For example, in pre-marital arrangements Ontario is called a marriage contract and they are recognized by section 52 of the Family Law Act.
United States
Presently, prenuptial agreements are recognized, although they may not always be enforced. Both parties must have a lawyer represent them to ensure that the agreement can be implemented and can work with the agreement between both parties. In some cases, the parties retain a private judge to be present during the signing, to ensure that no party is forced into the agreement. Some lawyers recommend signing video recording, although this is optional. Some countries such as California require that parties be represented by lawyers if the spousal support (allowances) is limited by the agreement. As a result, prenuptial agreements may become void if there is evidence that they are signed under pressure.
The prenuptial agreement is, at best, a partial solution to eliminate some risk of marital property disputes at the time of divorce. They protect the minimal assets and not the final word. Nevertheless, they can be very powerful and limit the ownership of the parties and benefits. It may not be possible to override the properly designed and executed pranup. A prenuptial agreement not only dictates what happens if the parties are divorced, but also what happens when they die. They may act as contracts to make a will and/or remove all your rights to property, wills, wills, the right to take as a prescribed heir, and the right to act as the executor and administrator of your spouse's property.
The prenuptial agreement is valid only if completed before marriage. Once a married couple, they can make a postnatal agreement. There are several ways that prenuptial agreements can be attacked in court. This includes the lack of volunteerism, discretion, and failure to disclose assets.
In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Similarly, in most jurisdictions, five elements are required for legitimate prenuptial agreements:
- the agreement must be made in writing (oral makeup generally has no legal force);
- should be voluntary;
- full and/or fair disclosure at the time of execution;
- the agreement is not allowed;
- it must be implemented by both parties (not their lawyers) "in the manner necessary for the deed to be recorded", known as recognition, before the notary public.
Prenuptial agreements in all US states are not allowed to regulate matters relating to marriage children, in particular, custody and access issues. The reason behind this is that things involving children must be decided in the best interests of the children. However, this is controversial: some people believe that as prisoners of detention are often the worst part of the divorce, the couple must be able to resolve this first.
The court will not impose the requirement that one person will wash the dishes or that the children will be raised in a particular religion. In recent years, some couples have incorporated social media provisions in their prenuptial agreements, by setting rules on what is allowed to be posted on social media networks during marriage, as well as in marriage ceremonies dissolved.
The sunset provisions may be entered into a prenuptial agreement, which stipulates that after a certain period of time, the agreement will expire. In Maine, for prenuptial agreements held before October 1, 1993, unless the parties renew the agreement, it automatically diverts after the birth of a child. In other countries, a number of years of marriage will cause the prenuptial agreement to expire. In countries that have adopted UPAA (Uniform Premarital Agreement Act), no provision of sunset is provided by law, but a person may be contracted privately. Note that states have different UPAA versions.
Unlike all other contracting laws, consideration is not necessary, although a minority of courts refer to the marriage itself as a consideration. Through prenuptial agreements, couples can fully relinquish rights to property, benefits or inheritance as well as selected sections and receive no rewards. Choice of legal provisions is very important in prenuptial agreements. Parties to the agreement may elect to have the laws of the country in which they are married in regulating the interpretation of the treaty and how property is shared at the time of divorce. In the absence of a choice of legal clause it is the law where divorced parties, not the laws of their married state who decide on property and support issues.
In drawing up agreements, it is important to recognize that there are two types of state laws governing the distribution of divisions, which are practiced by 41 states, and community property, which are practiced in several variations by 9 states. Agreements written in community property status may not be designed to govern what happens in a fair distribution state and vice versa. It may be necessary to hold lawyers in both countries to cover the possible possibility that parties may live in a state other than the country in which they are married. Often people have more than one house in different states or they move a lot because of their work so it's important to take it into account in the drafting process.
Due to the financial issues that support divorce, prenuptial agreements are routinely enforced and enforced by courts in almost all states. There are circumstances in which the court refuses to enforce certain sections/provisions of the treaty. For example, in a April 2007 decision by the Appeal Division in New Jersey, the court refused to enforce the terms of the prenuptial agreement relating to the waiver of his wife for his interest in the husband's savings plan. The New Jersey court stated that when the parties execute their prenuptial agreement, it is unexpected that her husband will later increase her contribution to the savings plan.
California
In California, one case ( Hall v. Hall , 222 Cal. App 3d 578 (1990)) establishes an oral prenup agreement in the will of one party because the surviving spouse has substantially altered his position in reliance on oral agreements. Marriage of Benson (2005) 36Cal.4th 1096 distinguishes Hall. Parties may rule out disclosure beyond what is provided, and there is no requirement of a notary, but this is a good practice. There is a special requirement if the parties sign the agreement without a lawyer, and the parties should have an independent counsel if they limit the spousal support (also known as a spouse's allowance or care in other countries). The parties have to wait seven days after the prenuptial agreement is first presented for review before they sign it, but there is no requirement that this should be done a few days before the wedding. Prayers often require months to negotiate so they can not be abandoned until the last minute (as people often do). If the prenuptial agreement asks for a lump sum payment at the time of the divorce, it may be considered promoting a divorce. This concept has been attacked and an attorney should be consulted to ensure prenuptial agreements do not violate this provision.
In California, through prenuptial agreements a married couple can set aside their right to share property (community property). Such agreements may limit the spousal support (although a court in divorce may rule this out if it deems that such restrictions are inappropriate). The agreement may act as a contract to produce a will that requires a spouse to provide for the other at death. It may also limit the right of wills at the time of death, such as the right to a will, the right to act as the executor, the right to take as a prescribed heir, and so forth. In California, Registered Domestic Partners may also enter prenuptial agreements. The post-marriage agreement is treated very differently in California law. Couples have a fiduciary duty to each other so that the pre-marriage agreement falls under the category of special agreement. There is a presumption that a postpartum agreement is obtained by undue influence if one party makes a profit. Disclosure can not be ignored in the context of postwar treaties.
Oceania
Australia
Prenuptial agreements are recognized in Australia by the Family Law Act 1975 (Commonwealth).
Maps Prenuptial agreement
Premarital mediation
Premarital mediation is an alternative way to create prenuptial agreements. In this process, a mediator facilitates an open discussion between spouses about all types of marital problems, such as expectations about working after children are born and saving and spending style and traditional pranikah discussions about the distribution of property and spouse support if marriage is stopped. The couples involved make all decisions about what will happen in the event of separation or divorce with the help of a mediator. They then draw up a memorandum of agreement or prenuptial agreement and have it reviewed by their respective lawyers. Agreements developed through mediation are usually cheaper because fewer hours are spent with lawyers because couples have made all decisions together, rather than one side vs the other.
Catholicism
The prenuptial agreement is a matter of civil law, so Catholic canon law does not govern it in principle (for example, to determine how property will be shared among children from previous marriages after the death of one spouse).
In practice, premarital can collide with Church law in a number of ways. For example, they can not subdue marriage with a condition that concerns the future (such as an agreement on the division of property in the case of a divorce). The Code of Canon Law provides: "Marriages subject to a condition of the future can not be legally contracted". (CIC 1102)
The Canon Law: Letter and Spirit , a commentary on canon law, explains that conditions can be defined as "the provisions that make the agreement are made depend on the verification or fulfillment of some uncertain circumstances or events". This goes on to state that "every condition about the future inherent in marriage approval makes marriage illegitimate." For example, a marriage would be invalid if the parties stipulated that they should have children or they had the right to divorce and remarry others.
Judaism
In Judaism, the cloak , a prenuptial contract, has long been established as an integral part of Jewish marriage, and signed and read at the wedding ceremony. It contains the needs of the husband to support his wife by giving him food, clothing and sex, as well as providing support for the wife in the case of divorce or death of the husband. However, under this section, a woman is free to leave if her husband does not provide it.
In 2004, the High Court of South Africa upheld a cherem against a Johannesburg businessman because he refused to pay his ex-wife an allowance as ordered by The Johannesburg Beth Din.
Recently, a movement supporting additional prenuptial agreements has emerged in some of the Orthodox Modern circles. This is in response to the increasing number of cases in which the husband refuses to give gett , religious divorce. In such cases, local authorities can not intervene, either because of concerns about the separation of church and state and the halakhic issues that will arise. This situation leaves the wife in an aginut state, where she can not remarry. To remedy this situation, the movement promotes prenuptial agreements in which couples agree to divorce them, if they occur, in rabbinical courts.
Islam
In Islam, there are only marriage contracts, known traditionally as Aqd qeran, aqd nekah or aqd zawaj, found in most Arab and Islamic countries. However, in Egypt, Syria, Palestine, Jordan and Lebanon (only 5 countries) are known by many as the Kitab al-Kitab. Most countries, however, do not call it the Katb el-Kitab. It has long been established as an integral part of Islamic marriage, and signed at a wedding ceremony. Similar to Judaism, it outlines the rights and responsibilities of the bride and groom or any other party involved in the marriage process. But this is different from prenuptial agreements because couples can cling to one another by simply signing a marriage contract without needing anything else.
References
- Notes
External links
- Media related to marriage contract in Wikimedia Commons
Source of the article : Wikipedia
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