Marriage contract in Belarus
What is a marriage contract (prenuptial agreement)?
Legal consolidation of the marriage contract in the Belarusian legislation first appeared in 1999. In Western countries, the concept of a prenuptial agreement appeared much earlier. Development of the rule of law, gender equality, legal protection of family and childhood are all prerequisites for the emergence of such a term as “prenuptial agreement”.
Generally, a man and a woman enter into marriage out of love and do not assume in advance that everything might change in the future – love will pass, while responsibilities will remain. Also, the future husband and wife sometimes do not realize that their rights and interests may be violated by one of the spouses. To guard and protect the interests of spouses, the legislator introduced the concept of a “prenuptial agreement”.
A marriage contract is an agreement of husband and wife or man and woman who marry, on mutual responsibilities and rights in the family, distribution of household responsibilities and family budget, raising children, and other rights and duties within their family. A prenuptial agreement plays an important role in determining the status of property acquired in marriage after its dissolution.
Thus, by entering into a prenuptial agreement, each party can determine which property will pass to one spouse, and which to another spouse in the event of divorce.
A prenuptial agreement must be certified by a notary. This requires the presence of both spouses or persons entering into marriage. If the parties are spouses, then they must provide a marriage certificate. Property documents are also required, such as documents confirming ownership of an apartment, garage, car, or other property.
One can apply to any notary of the Republic of Belarus (notary office or notary bureau) for the certification of a prenuptial agreement. To date, one must pay about 200 Belarusian rubles for having a prenuptial agreement drafted and certified by a notary, and these notary fees apply throughout the country, regardless of which notary the parties apply to. It is important to remember that after the transaction is certified by a notary, the prenuptial agreement needs to be registered with the Cadastral Agency if it establishes a regime for property.
What can be stipulated in a marriage contract?
The persons entering into a prenuptial agreement may provide in it for any rights and obligations that do not violate the law. If the agreement on property settlement can only stipulate property issues, a prenuptial agreement allows for inclusion of any conditions, in particular, the rules and regulations on maintenance and upbringing of children, etc.
Thus, a prenuptial agreement can establish:
- mutual maintenance obligations of spouses;
- rules and regulations governing the upbringing of children;
- distribution of household responsibilities;
- transfer of property ownership to one or the other party in the event of divorce;
- other conditions.
The only exception to the rule on the content of a prenuptial agreement are those rights and obligations that violate the current legislation. For example, a spouse does not have the right under a prenuptial agreement to oblige the other spouse to only deal with children and not work, because such a clause violates the constitutional right of a person to work. It is also prohibited to specify points that violate the norms of labour, administrative, criminal and other branches of law.
In US law, it is permissible to include in a prenuptial agreement the obligation of spouses to remain faithful to each other and other personal conditions, but Belarusian law does not allow it.
Why sign a marriage contract?
There are different points of view regarding the concept of a prenuptial agreement. Some people do not see the need for it, primarily from a moral point of view. They feel like the agreement itself is a sign of distrust between the spouses or persons entering into marriage. Indeed, why enter into a marriage if it is already being questioned (a prenuptial agreement is concluded, and conditions are prescribed in case of divorce)? This, however, is only one opinion.
Most legal experts agree that it is necessary and appropriate to enter into a prenuptial agreement. Its conclusion entails the protection of the rights and interests of the spouses, as well as avoids the need to defend their interests in court in the event of divorce. The conclusion of a prenuptial agreement is primarily popular among people who are aware of the legal nuances of marriage and family relations, are engaged in business, and own a large amount of property. According to the Belarusian law on marriage and family, all property acquired during marriage, regardless of whose name it is registered to, is the joint property of both spouses. Therefore, in a divorce, all property is divided equally between the spouses. The only exception is property that has descended to the spouse as a gift or by way of inheritance. A prenuptial agreement can also set other conditions for property, therefore over time, taking into account the development of legal awareness of the population, it’s becoming increasingly popular.
Thus, it can be unequivocally stated that the popularity of the concept of a prenuptial agreement in Belarusian society indicates an increase in the level of legal awareness of the population.
Termination of a marriage contract
A prenuptial agreement may be terminated at any time at the request of the parties. However, there are cases when a prenuptial agreement is terminated by a court decision. These include the invalidity or nullity of the prenuptial agreement.
A prenuptial agreement will not be legally binding if the marriage itself is null and void. In the Republic of Belarus a marriage is considered void if is concluded without the observance of required conditions for marriage (for example, a sham marriage, i.e. the spouses did not intend to start a family or entered into a marriage where one spouse is declared as having no legal capacity by court, etc.).
The court declares a nuptial agreement null and void if:
- it is concluded under duress;
- it is concluded through falsehood;
- it has the nature of a fraudulent or fictitious transaction;
- it contains conditions prohibited by law;
- in other cases.
A prenuptial agreement is considered to be concluded under duress if physical or moral abuse was inflicted on a party in order to coerce them into reaching the agreement. If the spouses or the future husband and wife hid information about their property from the other party, this will be recognized as fraud.
If the persons entering into a prenuptial agreement did not express their will to make the transaction, i.e. they did not want legal implications stipulated in the prenuptial agreement to come into effect, then such transaction is considered to be fraudulent and can be declared null and void by the court.
Common are cases when a prenuptial agreement contains conditions prohibited by law. These may include conditions that degrade the dignity of one or the other spouse. Thus, a prenuptial agreement must not infringe on constitutional human rights, such as the right to education, work, etc.
Disputes arising from marriage contracts
An important reason for entering into a prenuptial agreement is a change in the ownership of items and real estate by the parties, established by law. If a prenuptial agreement establishes a different property regime than the one provided for by law, then in the event of a legal dispute, the rules of the prenuptial agreement will apply.
Often the spouses establish that the items of individual use remain the property of the spouse who used them, while, for example, luxury articles, jewelry, or household items become the property of one of the spouses. The court will also be guided by the terms of the prenuptial agreement when making a decision. As for real estate, it is important that the fact of ownership transfer to the husband or wife is registered in the Cadastral Agency. If such registration took place, then in the course of judicial settlement of disputes the court will leave this real estate to the person that it was registered to.
Our advocates can provide you full legal assistance in the field of marriage contract drafting as well as to assist you in the notary office during the procedure of marriage contract registration. Please contact us to get more information.