3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
By means of a marriage contract, (future) spouses may agree on a matrimonial property regime different from the statutory one. They may stipulate a separation of property regime, a regime under which the joint property is constituted as of the date of termination of the marriage, as well as an expansion or reduction of the scope of the joint property (Section 717 of the Civil Code). The contract may contain, in principle, any agreement if the law does not prohibit it – it may especially determine differently from the law the conditions for inclusion/exclusion of existing and future assets in/from the joint property. This means, for example, that spouses may agree that an asset (e.g. real estate) owned solely by one of the spouses will become part of the spouses’ joint property. The marriage contract can also regulate property relations in the event of termination of the marriage by divorce or death (Section 718 para. 1 and 2 of the Civil Code). Also, the management of joint property can be adjusted by the marriage contract according to the needs of the spouses.
However, even under the regime of separation of property the contract basically cannot abrogate the requirement of both spouses’ consent to dispose of the so-called usual family household equipment (i.e. movable assets that serve vital needs of the family, regardless of whether they belong to the joint property or to only one of the spouses) (Section 718 para. 3 of the Civil Code). Furthermore, the marriage contract must not exclude by its consequences the ability of a spouse to provide for the family and it must not affect the rights of third parties, except where the third party agrees or if the contract is registered, at the request of both spouses, in a public register of marriage contracts (Sections 719 and 721 of the Civil Code).
3.2. What are the formal requirements and who should I contact?
Such contracts have to be drawn up by a civil law notary in the form of an authentic instrument (Section 716 para. 2 of the Civil Code).
3.3. When may the contract be concluded and when does it come into effect?
The contract may be concluded at any time during the marriage or also prior to its celebration. In the first case, the contract comes into effect upon its conclusion, in the second case when the spouses lawfully enter into marriage.
If, however, the subject matter of the contract is an object registered in a public register (e.g. real estate) which is already in the spouses´ joint property or which belongs to only one of them, the contract becomes effective in this part against third persons only upon registration in this public register (Section 720 para. 2 of the Civil Code). If the spouses agree upon a retroactive effect for their fixed regime, it is of no account.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses are free to modify the existing marriage contract on the basis of their agreement. Also for the new agreement the form of an authentic instrument drawn up by a civil law notary is required. The joint property regime may also be modified by a decision of the court (on the demand of one of the spouses). Such a modification requires an agreement of the spouses or a court decision on the parts of the joint property of the spouses in the existing matrimonial regime. Again, these changes are only effective against third parties under certain conditions.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
No. Pursuant to Section 716(1) of the Civil Code, matrimonial contracts may not be given retroactive effect.
