A marital agreement is a legal instrument through which spouses regulate their mutual property relations in advance, including what happens to their assets should the marriage end. The following is an overview of the key aspects — from the concept and content of such agreements to the required form and liability for debts.
Marital agreement, not “prenuptial”
In everyday speech, the term “prenuptial agreement” is often used. This term originates from Anglo-Saxon legal systems (pre-nuptial agreement) and does not exist as such under Croatian law.
The reason for the term “marital” is straightforward: the agreement can be concluded either before or during the marriage, which makes “prenuptial” an imprecise description. Under Croatian law, the only correct term is marital agreement.
What is marital acquest?
To understand the purpose of a marital agreement, it is necessary to understand the concept of marital acquest. Under the Family Act, marital acquest consists of property acquired through work during the marriage, or property deriving from such assets (Article 36 of the Family Act). Spouses are co-owners of this property in equal shares, unless otherwise agreed.
Separate property is property that a spouse owned at the time the marriage was concluded (Article 39 of the Family Act). Property acquired through inheritance or gift is also considered separate property, regardless of whether this occurred before or during the marriage.
In practice, this creates difficulties. Years after the marriage was concluded, it can be hard to prove what each partner owned on the day of the wedding. A marital agreement resolves this issue in advance.
What can a marital agreement regulate?
The Family Act does not prescribe the exact content of a marital agreement. Any arrangement that does not conflict with mandatory legal provisions is permitted. In practice, this also means that informal, non-professionally drafted agreements sometimes appear. Marital agreements most commonly regulate:
- different shares in the marital acquest — for example, a 60:40 split instead of the statutory 50:50
- specific income or assets designated as the separate property of one partner
- the management and disposal of specific assets
- the method for dividing the marital acquest in the event of divorce
- property-related matters concerning real estate, business shares, or savings
A marital agreement cannot regulate the personal rights of the spouses. This includes matters of child custody, which are instead addressed through a parenting plan.
Nor can it be used to agree on the application of foreign law, where both spouses are Croatian nationals (Article 42 of the Family Act).
Liability for debts
The question of debt is often overlooked by partners when entering into marriage, yet it can be of key legal significance.
The law provides that a spouse is not liable for obligations the other spouse had before the marriage, nor for obligations independently assumed after the marriage that do not relate to the family’s current needs (Article 43 of the Family Act).
A marital agreement allows these matters to be regulated more precisely and tailored to the partners’ specific circumstances. This is particularly important when one partner enters the marriage with loan obligations, ownership interests, or business risks.
Who can enter into a marital agreement?
A marital agreement may be concluded by a bride and groom, as well as by spouses at any point during the marriage. The same option is available to informal (cohabiting) partnerships that have lasted at least three years, or for a shorter period if a child has been born into the partnership.
How is a marital agreement concluded?
The required form is prescribed by law, with no exceptions. A marital agreement must be concluded in writing, with the signatures of both spouses certified by a public notary (Article 40 of the Family Act).
The notary certifies the signatures but does not assess whether the content of the agreement serves the interests of each party — that task falls to a lawyer. It is advisable for a marital agreement to be drafted with professional legal assistance, tailored to the specific financial circumstances involved.
Can a marital agreement be amended later?
Yes. A marital agreement can be amended or replaced by a new agreement at any time, with the consent of both spouses. The required form remains the same: written form with notarial certification. There is no time limit or restriction on the number of amendments.
Conclusion
A marital agreement is not a document of distrust. It is a legal tool that clarifies property relations in advance — both during the marriage and in the event it ends. It is especially useful when partners enter the relationship with existing assets, business interests, or loan obligations. Still, there is no reason it should not be considered by any couple.
The most common misconception is that a marital agreement means planning for divorce. In reality, it means planning a shared life with a clearly defined property framework.
Those with questions about marital agreements, or in need of professional assistance with family law matters, are welcome to contact the firm.