Ah! There you are! Well, this is a sequel to a previous article of mine – The Community of Acquests, and the last in the ‘marriage’ series. As I said back there, you might not like the prospect of entering into marriage with a community of property regime governing your marital life. There may be many legitimate reasons for this, but it’s usually always the same one – money.
It’s a method to ensure that if you married a gold digger, he or she won’t sponge of half your earnings a year or two into the marriage.
So what do we want to do? Shall we have a pre-nup or post-nup? A pre-nup is a contract done before marriage, a post-nup is done afterwards. Both have the same intended effect of keeping our separate properties….well…separate. Be it land, houses, town cars, estates, cash, bank accounts – each to his own! The way going about getting either one of them, is somewhat different though. It is easier in this sense, to draw up and obtain a pre-nup. After you’ve spoken to your lawyer you would be sure that he would take good care to draw up the terms for you. The Notary then publishes the contract and you’re done. When you eventually get married, you’ll have no community of property – except for what you may decide to buy together, after that…but that of course applies even if you weren’t married.
Well, what if you’re married already and you’d like to switch to this regime from the community of acquests. This one’s a bit more complex but just as doable. As always, speak to your trusted legal counsel. He’ll then draw up the contract for you and submit it to the Court for ratification. If the judge sees that all p’s and q’s are in order, he’ll issue a decree authorising the publication….and yes, we’ll go back to the Notary again, but this time armed with a Court decree! What’ll happen then is that your community of property, such as it is by that point, will be liquidated, and you’re, thereafter, governed by the regime of separation of estates.
In a nutshell what this means is each owns all his or her assets and liabilities. No creditor of one spouse may turn to the other spouse for any unsatisfied debt. No spouse can share in the Lottery winnings of the other spouse. All property belonging to each spouse is paraphernal. Even if these spouses decide to buy property together, for they still can, it needn’t be 50-50. It can be in completely unequal shares and the shares can be divided. Spouses will still inherit each other though unless they have drawn up separate testaments. They can now dispose of their properties differently, something they would not have been able to do if they were under the Community of Acquests regime. Similarly, if they were to die intestate (i.e., without a testament) they would still inherit each other.
The truth is, that one can get quite creative with these sorts of instruments, and this is why it is important to seek proper legal advice instead of just appearing before a Notary and asking him to get on with it. Get things done but get them done properly. Sound legal advice is a good investment that may save you tears and money further down the road. If you’re considering divorcing your property from that of your spouse and wish to draw up a post-nuptial agreement or are going into marriage and would like to keep your future jet plane all to yourself by employing a pre-nuptial agreement, give Calleja & Associates Advocates a call and we’ll be sure to assist you.
