The proposal to introduce prenuptial agreements is intended to extend the scope of the conventions in Article 162 of the Civil Code by allowing spouses, at any time, even before marriage, to establish rules to govern their property interests, especially in view of a possible separation or divorce.
By way of premarital agreements (now null and void according to settled case-law) the spouses can manage their property interests in advance and in a consensual manner, thus avoiding postponement of negotiations on the matter until a later time when the marriage is in crisis and it is difficult to achieve an agreement.
The content of the agreements at issue merely regulates the matrimonial property following a possible separation or dissolution of marriage or termination of the civil effects of marriage, without affecting the rights and mandatory requirements (such as the right to alimony or the duty of moral and material assistance pursuant to Art. 143 of the Civil Code) arising from the marriage, and without affecting the status of the marriage. In other words, by way of such prenuptial agreements it is possible to specify and determine the extent and the detailed arrangements for implementation of the available rights and the fulfilment of the obligations arising from the marriage.
Consider, for example, the arrangement whereby – at the time of termination of the marriage – a (former) spouse furnishes the other with a regular sum of money or a one-time amount of money or real rights over real estate with the obligation to use the proceeds for the maintenance of the other spouse or the support of children until they reach economic self-sufficiency.
Another example is an agreement that provides for the waiver of the obligation of a future spouse to maintain the other, except for the right to alimony.
The proposal includes a provision that agreements regarding minor children or adult children who are not economically self-reliant must be authorised in advance by the court, in order to substantially protect the rights and expectations of children.
With regard to the form of the agreement, this requires a public deed drawn up by a notary and signed in the presence of two witnesses, which ensures not only the origin of the statements and the identity of the person who signs them, but also that they have been expressed in total freedom and full awareness. The same form is required for modification or termination of the agreement.
Purpose of the Reform. What are the advantages?
Allowing spouses, at any time, even before marriage, to establish rules to govern their property interests in view of a possible separation or divorce is very useful in preventing such negotiations taking place when the marriage is already in crisis, amid reciprocal recriminations and demands.
Such prenuptial agreements help to maintain a relationship of solidarity and mutual support even in the most critical moment of the condition of marriage by removing any motivation for the dissolution of the marriage.