Matrimonial property

What is a prenuptial agreement?

Choice of matrimonial property regime and prenuptial agreements

Portuguese civil law has 3 main property matrimonial regimes:

1. Limited Community of Property
2. Community of Property; and
3. Separation.

If before the wedding the bride and groom do not choose a specific matrimonial property regime, they shall be subject to the regime of Limited Community of Property.

If they wish to choose another property regime or agree on other provisions to be in force in the context of marriage, they must sign a prenuptial agreement.

 

What is a prenuptial agreement?

The prenuptial agreement is a contract that bride and groom celebrate before the marriage and where they choose their matrimonial property regime, as well as foresee other rules and provisions, namely of patrimonial nature, that will be applied to them after the wedding.

It is in the prenuptial agreement that future spouses will be able to renounce the status of legitimate heir to the other spouse estate. Likewise, they may institute third parties or themselves as heirs or legatees of one or the other, or both.

They may also establish reversion or trust clauses in relation to the liberalities made in the pre-nuptial agreement itself. In a future article, we will try to explain what these clauses are and what purposes they could serve.

Limits of prenuptial agreements

The provisions that future spouses may include in the prenuptial agreement are, however, subject to narrow limits, which are provided for by law.

For example, the bride and groom cannot stipulate a matrimonial property regime that the law doesn’t allow them to choose. This will be the case for those over 60 who are necessarily subject to the Separation regime. Also, the bride and groom who already have children from previous relations will not be able to agree on the regime of Community of Property.

It is also not legally possible, under a prenuptial agreement, to restrict or increase the range of marital or parental rights and duties provided for by the law. This would be the case, for instance, of a couple that agrees that one of them would not be subject to the duty of assistance to the other spouse or that it would be solely up to him to decide on matters of particular importance in relation to his children.

Likewise, and in addition to other limitations, it is not lawful to change the legal rules regarding the administration of the couple’s assets.

Costs of prenuptial agreements

Prenuptial agreements are signed at a notary’s office or at the civil registry services. In this last case, the emoluments payable vary between €100.00 and €160.00, depending on the stipulations that appear in the prenuptial agreement.

In case the agreement is signed in a notary, the amounts payable vary according to the content of the agreement and also, albeit little, from notary to notary, as there are no fixed rates to be charged by them to their clients.

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