The treatment of property relations between spouses or engaged couples is an important and often overlooked aspect of matrimony. Drafting a prenuptial agreement is how future spouses can prevent potential disagreements or protect themselves against debts from the past. This is because such an agreement can modify, for example, what is and is not a part of the spouses’ joint property, how the spouses will manage their joint property, and so on.
What We Can Do for You
We can arrange the preparation of a prenuptial agreement or marital agreement governing property relations among spouses.
We can watch over the content of a prenuptial agreement or other marital agreement governing property relations between spouses and we can point out the agreement’s risks.
Basic Questions and Answers on Agreements between Spouses
When is the agreement governed by Czech law? When is it governed by foreign law?
Spouses or engaged couples can stipulate that their prenuptial agreement or other marital agreement shall be governed by the Czech legal system, as long as at least one of the spouses is a national of the Czech Republic or at least one of the spouses is its habitually resident.
If the future spouses do not concur regarding the legal system that the agreement will be governed by, their matrimonial property regime will, with a few exceptions, be governed by the law of the country
- of the spouses’ first common habitual residence after the conclusion of the marriage, or if there is no such country;
- of which both spouses are nationals at the time of the conclusion of the marriage, or if there is no such country;
- with which the spouses jointly have the closest connection at the time of the conclusion of the marriage.
Example: Let us imagine here that a Czech and a German plan to marry and that each of them has lived so far in their country of origin. They thus can reach an agreement that their matrimonial property regime will be governed by Czech or German law. If they do not reach such an agreement, their matrimonial property regime will be governed by the law of the first country in which they reside after entering into the marriage. This could be, for example, France, where they might both be working after the start of the marriage. If the spouses were, say, to then move to Spain, or anywhere else, this would not affect the governing law, and their property relations would continue to be governed by French law without regard to the long time that has passed since their having left that country.
In exceptional cases, and at the request of either of the spouses, a Czech court could decide, in a matter of matrimonial property relations, that the property relations in that marriage are governed by the law of another country.
How does a matrimonial property regime work, and how can it be modified under Czech law?
In general under Czech law, spouses’ joint property contains anything that either of the spouses has gained, or that both spouses have gained jointly, for the duration of the marriage. However, exceptions do exist.
Spouses’ joint property does not include for example:
- items for the personal use of one of the spouses
- what one of the spouses has acquired as a gift or inheritance
- what one of the spouses earned by selling things that belong to his exclusive property
On the contrary, any profit earned from an item that was exclusively owned by one of the spouses is still included in their joint property. Thus for example rent earned on an apartment owned by one of the spouses, bought by them before they entered into the marriage, will typically be part of the spouses’ joint property.
Debts assumed during the marriage are likewise part of the spouses’ joint property. Unless:
- they relate to a property belonging exclusively to one of the spouses, and this in an extent that exceeds the profit from that property
- or only one of the spouses assumed the debt without the other’s approval, and meanwhile the debt was not related to providing for the family’s daily or usual needs.
Example: A debt will not be a part of the spouses’ joint property in a case where the husband assumes a debt through the purchase of an apartment worth eight million crowns without his wife’s approval.
This legal regime can be adapted to work differently via a prenuptial agreement or any other marital agreement. For example, spouses can
- arrange a separate property regime – in this case, no joint property of spouses exists, and each spouse acquires property into their exclusive ownership—or can jointly acquire property into share-based joint ownership;
- extend or reduce the scope of statutory regime of their joint property – in the first case, the exclusive property of one of the spouses becomes a joint property of spouses, while in the second case, property that would fall within spouses´ joint property becomes the exclusive property of one of them, or rules are laid down for the future, based on which each spouse will gain a defined portion of their joint property as that spouse’s exclusive property;
- reserve the creation of spouses´ joint property as of the date the marriage terminate;
- organize property relations for the eventuality of a divorce or of the death of one of the spouses.
How long does it take to draft a prenuptial or marital agreement, and what are the usual steps?
An agreement on a matrimonial property regime must be written up as a notarial deed. It is advisable for each spouse, or each member of the engaged couple, to consult on its wording in advance with a lawyer. This is advisable because the notary writing up the agreement cannot simultaneously provide legal services to one of the spouses and/or notify them of the risks that their chosen solution may bring.
In the Czech Republic, matrimonial property regime agreements may be registered in a public list, i.e. in the List of Matrimonial Property Agreements. Registering an agreement in this list makes it applicable towards third parties as well, even if they have not been acquainted with its content. Therefore no party will be able to object that they were not informed of the change in the spouses’ matrimonial property regime. This can be practical, for example, if one of the spouses takes on a debt.
Can an agreement that was entered into in another country be used in the Czech Republic?
Agreements adjusting a matrimonial property regime that were written up abroad can, under certain circumstances, also be used in the Czech Republic. This will depend on a number of factors—typically on where an agreement was written, in what form, and for what purpose it is to be used in the Czech Republic.
What are the costs of writing up a prenuptial/marital agreement in the Czech Republic?
A fee is charged for the writing up of a prenuptial agreement or a marital agreement by a notary. The costs depend on multiple factors, but for example the costs for an agreement that establishes separate property regimes before spouses’ entry into a marriage amount to CZK 5,000 or less before VAT.
