Prenuptial agreements must be signed in writing by the future spouses prior to the wedding in order to be legally binding and enforceable.
The agreement does not have to be recorded in a public document according to the Family Codes. A public instrument is required in order for the agreement to be binding on third parties. Notarization of the pre-nup is required, as well as recording in the Registry of Property for Creditors’ Protection (RPPC) and your local civil registry (CV). Modifications to the pre-nuptial agreement must adhere to the same formalities and be completed before the wedding ceremony because they are considered an accessory to the union.
Our recommendation is that the parties fully and truthfully disclose a financial statement. Due to the potential for nullification, we want to make sure that the agreement is not tainted by any of the aforementioned vices of consent such as fraud or undue influence.
What else can a prenuptial agreement include?
Pre-nuptial agreements should list all of the parties’ assets and properties, as well as the monetary value of each. Additionally, it may include provisions for the distribution of wages, allowances and inherited property, as well as provisions for life insurance, pension plans, medical insurance benefits and educational plans. The inclusion of an arbitration or mediation clause is also highly recommended as an alternative dispute resolution method outside of the courtroom. If an annulment action is ever brought, it is important to include a provision on the location of the case.
The Family Code gives the parties complete discretion over the terms of their prenuptial agreement. To avoid violating “law or morals, good custom, public order or public policy” would be the only exception to this rule. It’s impossible for an agreement to stand if one or more of its terms are illegal, morally repugnant, or simply disrespectful of the institution of marriage and the family unit as a whole. If the agreement is declared null and void for any of the reasons mentioned above, the regime of absolute community will govern the settlement of marriages.
To be on the safe side, having an attorney draught and register the agreement is still the way to go.