Prenuptial agreement and divorce

Agreements concerning property rights aim to ensure a fair distribution of assets and a clear definition of rights and obligations. The aim is to create fair, balanced and bespoke contractual terms that reflect the expectations and aspirations of the spouses, both before marriage and during their life together, and following a possible divorce or the death of one of the spouses.

In order to fully represent the interests of our clients, we focus on identifying and distinguishing marital property from the separate property of each spouse as provided for by the legal matrimonial property regime. Where clients wish to deal with their property in a way that does not respect the legal matrimonial property regime, we advise on and draft prenuptial or marital property agreements and other possible agreements between the spouses.

Prenuptial agreement

Entering into a prenuptial or marital property agreement is a wise step in planning for the couple’s future, ensuring clarity and predictability of the spouses’ property rights and obligations, particularly in the event of divorce or the death of one of the spouses.

By drafting the appropriate content of the prenuptial agreement, we enable the future spouses to create a matrimonial property regime that best reflects their individual wishes, needs and expectations. The agreement defines in advance the property relationships of the future spouses, including:

  • the distinction between separate and marital property,
  • the division of marital property at the end of the marriage or in the event of death,
  • the conditions for spousal maintenance; and
  • inheritance arrangements.

In addition to providing greater legal certainty between the spouses, a prenuptial agreement allows flexibility in shaping the legal relationship, thereby influencing the stability and durability of the relationship between the spouses.

A marital property agreement entered into by the prospective spouses comes into effect on the date of marriage or on such date after the marriage as the prospective spouses specify in the marital property agreement. As the validity of such a prenuptial agreement requires a number of steps before it can be concluded, we carry out the following for our clients:

  • identify the other spouse’s assets, as the spouses must be aware of each other’s assets before signing the prenuptial agreement,
  • in collaboration with experts, we provide an assessment of the other spouse’s assets,
  • draft a marital property agreement, and
  • propose that the agreement be entered in the register of marital property agreements.

Agreements between spouses 

During the course of a marriage or cohabitation, the key question of the distinguishing between marital and separate property often arises and requires proactive action. In such cases, it makes sense for the spouses or cohabitees to enter into an agreement during their marriage or cohabitation in order to define the exact extent of their marital property and to define their separate property.

By entering into a marital property agreement in advance, the risk of potential legal disputes at the end of the marriage is effectively reduced. It provides legal clarity, helps to avoid potential disagreements between spouses and allows for a better understanding of property issues.

We work with asset valuation experts to identify and value the marital property of spouses or cohabitees, which mainly consists of:

  • real estate,
  • business interests in limited liability companies (d.o.o.), shares in public limited companies (d.d.),
  • financial and other assets,
  • motor vehicles,
  • other movable property (working machinery, furniture, equipment, works of art, etc.).

Once the marital property has been identified, we vigorously pursue our clients’ interests from the negotiation phase to the execution of the agreement or the final court judgement, and we draft the following for our clients:

  • Agreement on the determination of marital and separate property: We examine all the facts, the income, the contribution of both spouses to the creation and preservation of the marital property and draw up an agreement between the spouses that clearly defines which property (immovable property, movable property, money or other rights) belongs to the marital property of both spouses and which property is the separate property of one of the spouses. These agreements are drawn up during the marriage so that spouses can clarify which assets they can freely dispose of and use without the consent of the other spouse and which assets are subject to a joint management regime. We also advise on and prepare post-divorce agreements when it is necessary to identify the marital property of the ex-spouses and to determine and divide the shares.
  • Agreement on the determination of the shares in the marital property: Drawn up during the marriage or after the divorce, taking into account the unequal contribution, income or input of one of the spouses to the marital property, in order to achieve a balance in the property relationships and to ensure that the individual contributions and investments accurately reflect the shares invested by each of the spouses.
  • Agreement on the division of the marital property: Drawn up at the end of the marriage or during the marriage. The immovable property, movable property, rights and money covered by the agreement become the separate property of one or other of the spouses and are no longer subject to the marital property regime.
  • Maintenance agreement: We draw up a maintenance agreement for spouses in the event of divorce at the time of the marriage, during the marriage or at the time of the divorce.
  • Judicial proposal for the division of the marital property: If there is no agreement between the ex-spouses on how to divide the marital property, we determine the extent of the marital property and the shares in the marital property and prepare a proposal for division that pursues our clients’ interests in the division. If the spouses do not agree on the extent of the marital property or the shares in the marital property, we draft an appropriate action.
  • Action to determine the extent of the marital property and to determine the shares in the marital property: If the spouses do not reach an agreement on the extent of the marital property and the shares in the marital property, we draft an appropriate action or a response to an action, taking into account the overall actual contribution to the creation of the marital property, which includes the income and work of each spouse, mutual assistance, the care and upbringing of the children and the performance of the duties of the joint household, the care of the home, and other forms of contribution to the creation and maintenance of the marital property, with a view to achieving an equitable division of the marital property created during the course of the spouses’ marriage.

It is advisable to enter into a marital property agreement, especially if the contribution of one spouse is higher due to a higher income or due to the contribution of certain assets of one of the spouses to the marital property, as it clearly defines the extent of and the shares in the marital property at the time of its creation. The subsequent determination of the extent of and shares in the marital property, particularly at the time of divorce, is often less likely to establish the greater contribution of one of the spouses to the creation of the marital property, due to the temporal distance of the events. In addition, we recommend entering into a marital property agreement for the purely pragmatic reason that, by entering into such agreements, the spouses have a clear division of their property situation and, in the event of a divorce, they save themselves and their descendants time and money on legal disputes that may arise in this respect. 

Divorce

We deal with the stressful and emotionally-charged situations that accompany divorce or the termination of cohabitation with a professional and individual approach to our clients. We represent our clients and draft the following necessary out-of-court agreements or motions to be heard in court:

  • a divorce agreement between spouses,
  • an agreement on the care, upbringing and maintenance of joint children and their contact with the parents,
  • an agreement on the division of marital property,
  • an agreement on the fate of the rented home,
  • a spousal maintenance agreement,
  • a divorce petition or action.

Divorce is a complex process which, in addition to the formal divorce, also requires a thorough settlement of the other relationships between the spouses. We offer the following services to our clients as key services for their settlement, namely:

  • Action for maintenance of a dependent spouse: For a dependent spouse who has no means of subsistence and is unemployed through no fault of their own, we prepare a claim for maintenance from the other spouse, either during the divorce proceedings or later, by means of a special action to be brought within one year of the divorce becoming final.
  • Action for accommodation protection upon divorce: We represent clients in divorce proceedings who wish to have a rented accommodation transferred to the use of one of the spouses if this is in the best interests of the children, taking into account the housing needs of the spouses and their legitimate interests.
  • Actions for returning gifts: We advise and represent divorced spouses in disputes relating to their obligation to return gifts. This obligation concerns the return of gifts given by one spouse to the other, with particular emphasis on those gifts which are disproportionate to the financial situation of the giver.

Protection of children’s rights

In the event of divorce or termination of cohabitation, we take appropriate steps to protect the rights and best interests of children, particularly minor children. We draft appropriate agreements or protect children’s rights through court orders so that, in addition to guaranteed care and upbringing, the child receives appropriate maintenance and contact with the parent with whom the child will not be living in the same household or with others such as grandparents.

Our aim is to achieve a fair and equitable distribution of assets and to avoid potential disputes. Our involvement also extends to the legal settlement of property relationships between spouses or cohabitees prior to marriage or cohabitation. We also work intensively on the precise and compliant regulation of property relationships during and after the termination of a marriage or cohabitation.

Krištof & Brečko Advokatura