A marriage contract (prenuptial agreement) is often seen as a document only for wealthy families. In fact, it is a tool recognised by law that lets spouses settle their property relations in advance. In this article we explain, based on the Family Code, when and how a marriage contract is concluded and how property is governed when there is no contract. The topic matters both to couples preparing to marry and to those already married, because the law allows a contract to be concluded in both cases.
Who owns the property if there is no marriage contract?
To understand why a marriage contract is needed, it helps to look at the general rule first. Under the law, property acquired by spouses during the marriage is their joint common property (Family Code, Article 32.1). This is the regime set by law, and a different regime can be established by a marriage contract.
In other words, if the spouses have not concluded a separate agreement on property, an apartment, a car and other property bought during the marriage are considered to belong to both of them.
What property is personal?
Not everything is joint property. The following is the personal property of one of the spouses (Family Code, Article 34.1):
- property that belonged to them before the marriage;
- property they received as a gift during the marriage;
- property they received by inheritance during the marriage;
- property they received under other gratuitous transactions during the marriage.
In addition, items for individual use, except jewellery, belong to the spouse who uses them (Family Code, Article 34.2).
How is joint property divided?
If there is no contract between the spouses, their shares are considered equal when joint property is divided (Family Code, Article 37.1). However, the court may depart from this rule in the interests of the children and for other reasons set out in the law (Family Code, Article 37.2).
For couples who disagree with this rule or want to arrange their property relations their own way, a marriage contract can be useful. Note that the equal-shares rule applies precisely when there is no contract between the spouses, meaning a contract can provide for a different division.
When is a marriage contract concluded?
Under the Family Code, a marriage contract can be concluded in two cases (Family Code, Article 39.1):
- Before the marriage is registered — in this case the contract takes effect on the day the marriage is registered (Family Code, Article 39.2).
- At any time during the marriage — so spouses can conclude such a contract even years after the wedding.
So a marriage contract is not only a document signed before the wedding: spouses can also use this option when buying new property, starting a business and in similar situations.
The entry into force of a contract concluded before marriage is tied to the registration of the marriage: until the marriage is registered, such a contract does not take effect.
Form of a marriage contract
A marriage contract is concluded in writing and must be notarised (Family Code, Article 39.3). An oral agreement or a simple written document without notarisation does not meet this requirement.
Before signing the contract, it is useful to pay attention to the following:
- the contract should clearly state which property it covers;
- both parties should understand the terms and agree to them voluntarily;
- having a lawyer check that the text complies with the law helps prevent disputes.
Summary
- Without a contract, property acquired during the marriage is the spouses' joint common property (Article 32.1).
- Property owned before the marriage, or received as a gift or by inheritance, is personal property (Article 34.1).
- Without a contract, shares in joint property are considered equal (Article 37.1).
- A marriage contract can be concluded before the marriage or at any time during it (Article 39.1).
- The contract is concluded in writing and notarised (Article 39.3).
If you have questions about a marriage contract or family property, message us on WhatsApp: +994 77 739 10 12
📚 Sources
🌐 The original article is in Azerbaijani; the official sources are available in Azerbaijani.
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