In our practice, clients increasingly request legal assistance in preparing a draft marriage contract for its subsequent certification. Each spouse has his own reasons for concluding a prenuptial agreement: for some, a prenuptial agreement is often seen as a kind of insurance that will protect the interests, as well as the interests of children in the event of a divorce, for others, a prenuptial agreement is a way to determine the rights and obligations of each of the spouses during the marriage, for third, it is a mechanism to determine the fate of property after the dissolution of a marriage. Sometimes we are approached with not quite standard proposals that the spouses would like to consecrate in the marriage contract. This case will be discussed further.
Marriage contract according to the legislation of Belarus
The Marriage Code on the Family defines a prenuptial agreement as an agreement between persons entering into marriage or spouses on the definition of their personal non-property and property rights and obligations both during the period of marriage and after its dissolution. A rather ornate legal definition of a marriage contract, however, allows us to highlight its features.
First, the parties to the contract can be either persons who only intend to marry, or persons who are already spouses. The legislation of the Republic of Belarus does not contain any requirements regarding the citizenship of the spouses, which means that the conclusion of a marriage contract with a foreign citizen is permissible and does not contradict the requirements of the Belarusian law.
Secondly, the marriage contract itself can be devoted to both property issues and the personal non-property rights of each of the spouses. The Marriage and Family Code contains an indication of what the parties may determine in the marriage contract.
For example, spouses can determine a list of rights and obligations for mutual maintenance, including after divorce, the procedure for dividing property, as well as change the regime of property that is the common joint property of spouses, issues of relationships between parents and children, including in terms of alimony payments.
How a marriage contract is concluded in Belarus
A marriage contract is an agreement that is subject to appropriate legalization, most often notarial. Belarus is no exception to the general rule – the marriage contract is certified by a notary. The notary will tell you how to draw up a marriage contract, as well as assist in its preparation. Although a prenuptial agreement template can be easily found on the Internet, we recommend that you consult with a specialist before using it. It is necessary to take into account the requirements of foreign law in cases where one of the parties to the contract is a foreigner.
Marriage contract: a case study
Not so long ago, we finished preparing a draft marriage contract for our foreign client. He himself, a citizen of Belgium, together with his future wife, a citizen of the Republic of Belarus, temporarily resides in Hong Kong, where part of his assets are located. In addition, part of the property in the form of securities is kept in his accounts in the UK. Initially, the future spouses wanted to get married in Belarus, and before marriage they planned to sign a prenuptial agreement. However, the existing restrictions on flights have made certain adjustments. Due to the impossibility of arriving in the Republic of Belarus to sign and certify the marriage contract, we offered to legalize the document at the Embassy of Belarus in China. Consular departments are empowered to certify transactions, contracts and agreements, as well as other documents. In fact, when legalizing a marriage contract, the consul performs the functions of a notary.
In addition to the fact that the future spouses wanted to change the regime of property acquired during the marriage in the event of a divorce, they also asked to include in the text of the marriage contract provisions on financial compensation upon dissolution of the marriage, the conditions and terms for paying such compensation, as well as the possibility of refusing to pay compensation. in case of infidelity of the spouse, or commission of violent acts. In addition, the future wife of our principal asked to fix in the contract the amount of alimony for each of the children who will be born in marriage.
Marriage contract in case of infidelity of the spouse
The legislation of the Republic of Belarus does not contain any prohibitions on the inclusion of conditions on adultery in a marriage contract. In our practice, agreements with similar wordings occur periodically. At the same time, from a legal point of view, there are difficulties with the actual execution of a marriage contract, which includes such conditions.
For example, the parties to the agreement agreed that in the event of divorce, the husband pays monetary compensation to his ex-wife. In the case of adultery, the wife loses the right to such compensation. After the dissolution of the marriage, the spouse raises the question of the ex-husband about the payment of funds and receives a refusal from him, as he is convinced of the numerous betrayals of the ex-wife.
From the point of view of a lawyer, in order to be released from the burden of paying compensation, there must be a legal fact, confirmed by a court order, based on reliable and sufficient evidence. The private opinion and conjectures of the spouse are not sufficient grounds for refusing to pay compensation under the marriage contract.
The situation is similar with the confirmation of the facts of violence, beatings to one of the spouses. If, as a result of the proceedings, it is confirmed that one of the spouses caused bodily harm to the other, then in this case we can talk about the possibility of changing the conditions for compensation.
Marriage contract and conditions for the payment of alimony
Provisions for the payment of child support in the event of a divorce are fairly typical conditions for a prenuptial agreement. As a rule, the parties agree that upon dissolution of the marriage, alimony will be paid in an amount greater than that provided by applicable law.
Is it possible to include conditions on increased alimony in the marriage contract if the children in the marriage have not yet been born? The opinions of our colleagues from the Belarusian Chamber of Notaries are divided, although the majority believes that children should be identified in the text of the marriage contract, which means that until the moment of their birth, the conditions for alimony, as well as the place of residence of children in case of divorce, etc. cannot be fixed in a marriage contract.
At the same time, this position seems debatable to us: there is no direct prohibition on the inclusion of such conditions in the marriage contract by law, on the contrary, such provisions contribute to the improvement of the culture of marriage and family relations, provide additional guarantees to children.
Certification of the marriage contract by a notary
As we noted, the marriage contract must be certified by a notary or a Belarusian consul. The contract is drawn up in one of the state languages of Belarus. If one of the parties to the contract is a foreign citizen, then an interpreter must be present during the procedure for legalizing the document, who will explain to the person who does not speak Russian the provisions of the marriage contract. If necessary, the document can be prepared in two languages: for example, in Russian and in the language that the foreigner speaks. In this case, the translator will have to certify the authenticity of the translation.
Our lawyers and family advocates have extensive experience in providing legal assistance in the form of preparing marriage contracts and other documents for clients. Our lawyers are ready to provide you with the following legal assistance related to the preparation of marriage contracts:
– oral and written consultations on the preparation and drafting of marriage contracts;
– development of a draft marriage contract, harmonization of the terms of the marriage contract;
– representation of interests at the notarization of the marriage contract.
If you have questions related to the departure of a child from Belarus, and you need help or advice from a lawyer, please contact our lawyers at the email address: info@familylawyer.by or by phone: +375293570355.
