Marriage contract: for the wife not to be deceived
„I will marry you only after we sign a premarital agreement“, – the phrase comes out from the lips of on of the people going to get married. Why do people giving their oaths of eternal love need an agreement on division of property? Now after the wedding season is over we discuss marriage contracts with those who help to avoid problems in the process of divorce, who participate in dissolution of a marriage and its registration: judges Irena Stasiuniene and Ramune Makeliene, a notary Marius Strackaitis and newly wed couples.
Reasonable and modern
A marriage contract is an agreement of spouses which determines their property rights and duties in the marriage and in of dissolution o fthe marriage or separation. Although the society often sees such contracts as a priviledge of famous and rich people, they are concluded by more and more modern, educated people or those who have suffered from previous marriages.
„As the number of divorces is growing, more and more people try to defend themselves from possible financial losses“, – says the president of the Lithuanian Notary Chamber, Klaipeda notary Marius Strackaitis. According to him, such contracts also make people look at the marriage, their contribution to creation of a family in a more responsible manner.
A judge of Vilnius precinct court R. Makeliene agrees with the notary and believes that conclusion of a marriage contract may be connected with a desire to protect oneself from any surprises in case of divorce. „It seems reasonalbe to provide for property rights and dutis of spouses in advance if a marriage looks risky or there is not much trust. Still I think that marriage contracts often are concluded for practical reasons“, – she says.
A way to protect oneself
A judge of Siauliai precinct court I. Stasiuniene remembers that she used to come across a case when signing a marriage contract was a condition for the marriage to be entered into, i.e. a man who had more property told a less well off woman that he would marry her only if a marriage contract were signed. „Probably the woman needed this marriage, while the man tried to avoid it,“ – the judge suggests with a smile.
I fact, a marriage contract is not the only way to ingeniously protect one‘s property. I. Stasiuniene mentioned on divorce case where a wife was left with nothing. The husband who initiated the divorce provided to the court several donation contracts proving that all the real estate, all the valuable items in the house belonged to him. „In a marriage all the property is common, except for what was donated or won. So this cunning husband had made sure all the valuable property acquired by himself or together with his wife was formalized as donations he had received. The wife who trusted in her husband and had never suspected such contrievance after the divorce was left back at the bottom of the ladder. Perhaps a marriage contract would have been helpful in this case, maybe the deceit could have been stopped in time“, – the judge tells one of sad stories.
Saving time and money
According to M. Strackaitis, in a marriage contract one may set forth different options of property‘s belonging to one or both spouses. All the property purchase before or after marriage or only after marriage may become common property of the couple under the contract. You can also agree that only a part of the property will be common or the property purchase by each of the spouses before or after marriage will be personally owned by each of them. If a marriage contract determines that all the property will be owned personally by one of the spouses he (she) will be able to solely transfer it or to conclude other deals without participation of the other spouse. This would make conclusion of a deal easier for the spouses.
Besides, R. Makeliene states that it is much easier to divorce couples who have concluded a marriage contract. „If a marriage contract exactly and specifically sets forth a legal regimen of the spouses‘ property, the character of duties, compensations, issues of support, it is easier to hear a divorce case, because there are no disputes, no need to collect evidence“, – says the judge about benefits of a marriage contract in respect of facilitation of a divorce process.
A contract does not regulate everything
When a court proceeds issues regarding property a lot of time and money may be saved: one doesn‘t need to hire a lawyer and to pay a stamp duty. „Yet, in case of a divorce division of property is the issue not so sensible as determination of the children‘s place of residence and other similar questions connected with children. It happens quite often that older couples have already divided their property before the divorce, but then problems with children arise. That‘s why they turn to the court“, – judge I. Stasiuniene shares her experience in solving divorce problems.
According to M. Strackaitis, a marriage contract is meant to establish property rights and duties and not personal ones, such as care about children. M. Strackaitis says that a marriage contract may not limit rights and freedoms of one of the spouses, change order and condition of inheritance, limit or deprive a spouse of a right for support, establish or change personal rights and duties of spouses in respect of their children, establish personal non-property relations of spouses or contradict other norms set forth by laws.
Marriage contract and a marriage solemnized in a church are incompatible things
I. Stasiuniene agrees that a marriage contract helps to avoid or facilitates solution of issues of division of property. At the same time the judge believes that contracts should be concluded only in case a marriage is not solemnized in church. „I always wonder: perhaps people don‘t understand well what they are doing when they get married in church and then con clude a contract? The oath to live together till the end of their days and discussion how we would divide our property in case of divorce – these are absolutely contrary things“, – says the judge.
The judge also mentioned cases when people who got married in church come to the court asking to dissolve their marriage. „In this case we ask them to specify their requirements: they need to ask to cancel a church entry on registration of the marriage and not to dissolve the marriage. The thing is that we, judges, do not dissolve a religious marriage, we only make a decision on civil consequences of cancellation of a church entry on registration of a marriage“, – the judge explains. I. Stasiuniene added that a marriage solemnized in a church may be declared invalid under the canon law, and dissolution of a religious marriage is much more difficult than a judicial procedure.
Some need the contract, while others don‘t
Although more and more couples conclude marriage contracts, more and more often society and mass media say that such contracts are a way to avoid possible property disputes, one of the couples we interviewed for this article who have just exchanged the rings and asked not to be named said that they hadn‘t even thought about a possibility to conclude a marriage contract. This couple believes that conclusion of a marriage contract prepares future divorce: „We think that such contract supposes that the marriage may be dissolved at any moment and consequences would not be painful. After all, property is divided, so the process will be smooth, none of the parties would suffer.“ The spouses also said that in their opinion such contracts may be signed in cases when before the marriage spouses have acquired a lot of property and wish to avoid any disputes regarding it.
Yet, such contracts are signed not only with purpose to defend property but also to protect each other from possible financial problems. Another couple who didn‘t wish to be named state that before they gave their oaths in church they had signed such contract because they wanted to protect each other from possible debt burden. „In the future there may be problems due to past debts, therefore I don‘t want my dear one to suffer because of the mistakes I‘ve made“, – the husband said.
M.Strackaitis also states that in case a marriage contract is concluded that provides that both acquired property and undertaken obligations are personal for each of the spouses, the property of one of the spouses would be protected also in case the other spouse has many debts due to business fails, takes a quick credit or has some bad habits, such as gambling.
Asnswers bring about new questions
It seems like before the wedding we should think soberly where, why and with whom we are going. Are we ready indeed to be forever together with this person, to forgive him and to share with him everything, whatever may happen? Should we take risks, not sign any contracts and leave our future as luck would have it? Perhaps a marriage contract is in fact a modern guarantee of a happy future and not an expression of doubts? Let each couple answer these questions taking into consideration other people‘s experience and lawyers‘ advice.