Marriage - What is a Marital Agreement

• What is a Marital Agreement?
• What are the Capacity Requirements for a Marital Agreement?
• What Does a Sample Marital Agreement Contain?

A marital agreement is a contract entered into by spouses either before marriage or during their marriage, containing provisions that regulate the marriage, divorce, and post-divorce processes. Marital agreements predominantly regulate how assets will be divided after divorce, meaning which matrimonial property regime the spouses' assets, included in the marriage, will be subject to. While freedom of contract is the general principle, spouses are not granted unlimited freedom when it comes to determining the type of matrimonial property regime. Therefore, this article will focus on the aspect of marital agreements determining the matrimonial property regime.

📎 Related: Visit our Izmir Divorce Lawyer page for detailed information.

According to the provisions of the Civil Code regulating the capacity to enter into contracts, the right to conclude a marital agreement is granted to those with legal capacity to discern. Persons with full legal capacity, who possess the capacity to discern and have completed eighteen years of age, can directly exercise this right. Persons with limited legal capacity, who possess the capacity to discern but are minors or interdicted, can enter into this agreement with the permission or consent of their legal representatives. Persons without any legal capacity, who do not possess the capacity to discern, do not have the right to enter into this agreement.

Regarding matters other than the matrimonial property regime to which spouses are subject within the marital union, spouses may, by virtue of freedom of contract, request the regulation of any matter, provided that the agreements comply with the conditions of validity. In other words, as long as conditions such as compliance with mandatory provisions of law, public morals, public order, and personal rights; the subject matter not being impossible; and the absence of vitiation of consent are met, the parties may regulate any matter.

In this context, there is no legal impediment to including provisions in the agreement such as spouses showing respect to each other, equal involvement in childcare, adherence to family obligations, and specifying spouses' duties of fidelity. However, when it comes to determining the matrimonial property regime, as will be examined in detail below, spouses can only determine a regime stipulated by law.

What Does a Notarized Marital Agreement Sample Contain?

Firstly, the names, surnames, and identification details of the parties are specified in the agreement. Subsequently, the provisions to be included in the agreement are addressed. In this context, matters such as where the family home will be, the equal sharing of birth processes and expenses for children by the parties, joint decision-making on all matters concerning common children until they reach majority, the matrimonial property regime to which spouses will be subject during marriage, and how divorce proceedings will be conducted in case of breaches of duties of fidelity, may be included in the agreement. The agreement is established with the signatures of the parties and notarization.

How is a Marital Agreement Made?

What is actually meant here is the formal requirement of a matrimonial property regime agreement. In our legal system, spouses can conclude a matrimonial property regime agreement either by making a written declaration to an authorized official before marriage or by entering into an agreement drawn up or certified by a notary public after marriage. The agreement is signed personally by the spouses and, where necessary, by their legal representatives. As can be seen, this agreement is subject to a formal requirement of official form.

Although a declaration made to an official before marriage is submitted in ordinary written form, it still constitutes an official procedure. Apart from this, no other official or institution has the authority to draw up or certify a matrimonial property regime agreement.

What is a Matrimonial Property Regime Agreement?

It is an agreement made by spouses in an official form, adhering to the limits permitted by law, and whose subject matter is the regulation of the matrimonial property regime. Before marriage, fiancés, or after marriage, spouses, determine the matrimonial property regime they wish to be subject to from among the options specified in the law.

In this context, the parties may choose one of the regimes other than the statutory matrimonial property regime, such as separation of property, participatory separation of property, and community of property, or they may regulate aspects of the statutory matrimonial property regime permitted by law. If the parties do not choose any matrimonial property regime before or after marriage, they will be subject to the statutory matrimonial property regime, which is the regime of participation in acquired property.

Can the Provisions of a Marital Agreement Be Amended?

As mentioned above, it should be accepted that amendments can always be made in matters where the parties' autonomy of will is broad, outside the scope of the matrimonial property regime. Regarding the matrimonial property regime, if no regime has been determined by the spouses, the statutory matrimonial property regime may be abolished during the marriage, and one of the optional matrimonial property regimes may be adopted. If an optional matrimonial property regime has been determined before or after marriage, it is also possible to switch to other matrimonial property regimes.

The formal requirements of official form remain valid. If an agreement was made in the presence of an official before marriage, it can only be amended by an agreement made in the presence of a notary public after marriage.

How Does a Separation of Property Agreement Regulate the Division of Assets?

As stated above, if the parties have not determined a matrimonial property regime, the statutory regime of participation in acquired property will apply. For detailed information on the statutory matrimonial property regime, you can read our article titled "How is Property Divided in Divorce?". This section will explain the separation of property regime, which is one of the optional matrimonial property regimes. This regime is not based on the principle of sharing assets.

Spouses retain their rights of administration over their own assets; their rights of usufruct and disposition are not prejudiced. If this regime is adopted, there will be no co-ownership over the spouses' assets after marriage, and no division of property will arise upon the termination of the marriage. Their assets will remain unaffected by the marriage, as if the marital union had never been established between the spouses.

This matrimonial property regime is also considered an extraordinary matrimonial property regime, and in circumstances constituting a just cause, such as one of the spouses being under threat of attachment, the court may decide to switch to separation of property, even if a different matrimonial property regime had been determined.

What Does a Sample Separation of Property Agreement Look Like?

This agreement, to be established in accordance with the capacity and formal requirements explained above, can be drawn up by writing "separation of property" in the clause where the adopted matrimonial property regime is specified. No special regulation is foreseen regarding the agreement being an official contract, the parties' wills, and the other specified conditions.

What is the Effect of a Separation of Property Agreement on Inheritance?

In the event of the termination of marriage due to the death of one of the spouses, the surviving spouse, as a rule, becomes both an heir and a party to the matrimonial property regime. We have stated that under the separation of property regime, spouses have no right over each other's assets. However, according to the provisions of inheritance law, the surviving spouse's heirship over the deceased spouse continues. Therefore, even if no claim arises for the surviving spouse as a result of the termination of the marriage, it is possible for them to receive their share according to the provisions on inheritance division in their capacity as an heir.

Is Termination or Annulment of a Marital Agreement Possible?

As a rule, the provisions of a matrimonial property regime agreement remain in force until the termination of the marriage for any reason. Furthermore, a matrimonial property regime may be terminated if the parties mutually agree to switch to another matrimonial property regime, if the conditions for an extraordinary matrimonial property regime are met, or upon the request of one of the spouses, provided there is a just cause. However, in this case, only the matrimonial property regime terminates.

The agreement produces all its provisions and effects until the terminated matrimonial property regime is liquidated. No special regulation is foreseen regarding the annulment of a matrimonial property regime agreement. However, a lawsuit for the annulment of the agreement may be filed in situations such as unconscionable advantage and vitiation of consent. The competent court for this lawsuit is the family court.

Can a Marital Agreement Be Made to Avoid Paying Alimony?

As we stated above, provisions determined under the name of a marital agreement that are contrary to mandatory provisions of law, public morals, personal rights, and public order are null and void. Therefore, if a provision restricting a person's right to claim alimony is included in the agreement before this right even arises, it is invalid. Even a party entitled to receive alimony for indigence cannot waive this right in advance by their own consent. Consequently, a marital agreement cannot be made to avoid paying alimony. Furthermore, meaningless provisions that restrict a person's fundamental rights and freedoms and are aimed at satisfying the parties' personal ego will also be invalid.

You may submit any questions you have regarding marital agreements to us via the form at the bottom of the page.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy