Can the spouses, immediately before the dissolution of the marriage or even before the divorce process has been filed, agree in writing on the terms under which they intend to share the couple's common property and any debts that may exist?
In this article, the Family department of Belzuz Abogados, SLP, discusses the importance of drawing up a promissory contract of division moments before or at the same time as the divorce proceedings are filed, and its validity.
The question is whether the spouses can agree, immediately before the divorce, in writing, on the terms under which they intend to divide the couple's joint assets and any debts that may exist.
The promissory contract to share the couple's joint assets is covered by the general definition of the promissory contract regulated in article 410 of the Portuguese Civil Code.
However, since this is a contract to share the couple's joint assets, its terms must safeguard, under penalty of nullity, the legal rules that impose, during the marriage, the immutability of the marital property regime and the participation of each spouse in equal shares in the assets and liabilities of the joint assets (in other words, assets and debts).
In fact, at the moment of their marriage, the couple can decide whether to adopt the regime of the communion of acquired (only property acquired after their marriage is joint property), the regime of general communion (all current and future property is common property), the separation of property regime (separation of goods; under this regime, there is no shared property) or agree on any other regime by signing an prenuptial agreement. If they do not say or agree anything, and if there´s no prenuptial agreement, the automatically applicable regime will be the communion of acquired. There are, however, some cases in which the separation of property regime is considered automatically applicable, if nothing is declared or agreed by the couple, for example i) when the marriage is celebrated by someone who has reached the age of sixty, if they are male, or fifty, if they are female; ii) when the marriage is celebrated by someone who already has legitimate sons and daughters, even if they are adults or emancipated.
However, once the marriage has been celebrated, except for the situations provided for in articles 1715, 1767 and 1773, all of the Portuguese Civil Code, this regime cannot be changed, in other words, it is not possible for the parties to choose another marital regime. This rule is known as the principle of immutability.
On the other hand, the principle of equal participation of each spouse in the assets and liabilities of the common property means that none of the couple can receive an excessive benefit from a promise made before the end of the marital relationship.
Nowadays, after controversial debates on this matter, it has been recognized that such a contract is valid, provided that the effects of the agreement only occur after the divorce and if none of the couple receives an excessive benefit from a promise made before the end of the marital relationship.
Nevertheless, it is also important to pay attention to a few details when drawing up this type of contract: it is important to stipulate a date for the definitive contract to be concluded and to include a specific compulsory enforcement clause.
By submitting a promissory contract to specific compulsory enforcement clause in the event of default, it is possible to obtain a court decision that produces the effects of the defaulting party's contractual declaration.
Given the complexity of this theme, it is essential to have legal advice from legal experts in family law. Belzuz Law Firm provides legal services in family law, in coordination with other areas that may be necessary, such as tax law, real estate and corporate law.
Belzuz Abogados SLP
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