Prepared by: Maša Drkušič and Anna Vidovič
As of April 15th 2019, the new Family Code (FC) which,
among other things, brings important changes and innovations regarding the
regulation of matrimonial property regimes, will fully apply and thus eliminate
the excessive rigidity of the Marriage and Family Relations Act. The most
important change is the introduction of the nuptial agreement, with which the
spouses (and other subjects that enjoy the same rights and obligations as
spouses in their property relations) can autonomously regulate their property
The nuptial agreement can be concluded before or after the spouses get married. By concluding a nuptial agreement, the spouses can change, supplement or exclude the statutory property regime. The agreed property regime between the spouses comes into force only after the nuptial contract is concluded or on the day, which the spouses choose as the date, that the contract comes into force. If the spouses conclude a prenuptial agreement (i.e. the nuptial agreement is concluded before they get married) the property regime comes into force only after the spouses get married. The statutory property regime, as regulated by the FC, is not mandatory and is only applicable in case the spouses do not conclude a nuptial agreement.
By concluding a nuptial agreement, the spouses can regulate their property relations during the marriage, as well as in case of divorce. In the nuptial agreement the spouses may agree on ownership of assets, acquired during their marriage, as well as on the property regime itself, but it is not allowed to regulate issues related to inheritance issues, as well as issues of child custody, visiting rights and child support of minors.
Prior to the conclusion of the nuptial agreement, the spouses must inform each other about their property status, otherwise the nuptial agreement can be invalid. The nuptial agreement must be concluded in the form of a notarial act and entered into the register of nuptial agreements. Nuptial agreements are therefore valid only if they are concluded in the form of a notarial act, and they effect third parties only if they are entered into the register of nuptial agreements.
Changes made by the FC and the introduction of the
option of concluding a nuptial agreement, represent important progress in our
legal order and a major step towards the democratization and liberalization of
family law, which largely ensures the enforcement of the principle of autonomy
of the will and contractual regulation of relations, as one of the main
principles of civil law, which has been severely degraded so far.