Prenuptial agreement. Pros and cons

A prenuptial agreement (marriage contract) defines the legal regime of the spouses’ property relations and sometimes other aspects of family life. In Ukraine this instrument is only beginning to gain popularity, but the question of whether such contracts are advisable arises increasingly often, especially in the business environment and in cases of remarriage. In this article, the essence of a prenuptial agreement, legal nuances, as well as the pros and cons of this form of regulating relations are examined in detail.​

What is a prenuptial agreement?
According to Article 92 of the Family Code of Ukraine, a prenuptial agreement is a written contract concluded between persons intending to marry (before the state registration of marriage, but effective only after such registration) or between spouses, the purpose of which is to regulate the parties’ property rights and obligations.​

A prenuptial agreement may regulate:

• the regime of joint or separate ownership;
• the procedure for distribution of income and future purchase of real estate;
• the allocation of obligations for the maintenance of the family;
• property liability for debts;
• other arrangements concerning property.

At the same time, the law expressly prohibits restricting personal non‑property rights (the right to work, education, medical care, etc.) and the rights and obligations regarding children.​

Who concludes a prenuptial agreement and for what purpose
The reasons for entering into prenuptial agreements in Ukraine differ depending on the spouses’ status and motivation:

• the desire to clearly define the rules of ownership and protect a share in a business;
• a significant difference in financial standing or the presence of inherited assets;
• relevance for persons entering into a second or subsequent marriage or having children from previous relationships;
• securing creditors or settling property issues before entering into a major transaction (for example, purchasing housing with a mortgage).

Court practice shows that, without a proper agreement, disputed situations often arise when, during a divorce, neither party can directly prove its rights to a specific asset.​

Advantages of a prenuptial agreement

1. Transparency and certainty of property relations
   The agreement helps avoid misunderstandings in the future regarding which assets belong to each party or constitute joint property.
2. Protection of both parties’ property interests
   This is particularly important where there is a business, real estate or inheritance, as the agreement prevents redistribution of assets upon divorce contrary to what has been agreed.
3. Prevention of lengthy court proceedings
   Clearly defined rules on ownership help reduce or avoid litigation in the event of divorce.
4. Ability to adapt to the family’s needs
   A prenuptial agreement is an individual contract whose content can take into account the specific circumstances of a particular family.
5. Protection from one spouse’s debts
   The document may stipulate that certain obligations or debts are not joint.
6. Flexibility in determining maintenance obligations
   The parties may establish the procedure for payment of alimony or the amount of financial support regardless of standard statutory rules.​

Disadvantages and risks of a prenuptial agreement

1. Lack of awareness of the parties
   Such agreements are often concluded without sufficient understanding of their legal consequences, which may lead to unfair terms.
2. Potential pressure or inequality when signing
   One party may have an advantage (economic, psychological, etc.) and impose conditions that benefit them.
3. Limited scope of regulation
   The contract cannot affect issues relating to children or personal rights, which may sometimes frustrate the parties’ expectations.
4. Loss of trust or “de‑romanticizing” marriage
   Discussions of financial matters may hurt feelings and be perceived as prior distrust or a “conditional consent” to divorce.
5. Not all terms will be upheld by a court
   Provisions that contravene morality, the law or the parties’ interests may be declared invalid.
6. Future changes of circumstances
   Life changes, and a contract drawn up under certain conditions may later become irrelevant or unfair after many years.​

Specific features of concluding a prenuptial agreement
A prenuptial agreement must be executed in notarial form. It becomes effective only after official state registration of the marriage. It may always be amended or terminated by mutual consent of the parties or by a court decision in the event of substantial violations or unfair terms. It is important to remember that the agreed provisions must not contradict the law, and clauses that infringe rights or place one of the parties in an extremely disadvantageous (onerous) position may be declared invalid.​

Practical tips for concluding a prenuptial agreement

• Engage a professional lawyer to analyse and prepare the text.
• Clearly define the list of property that constitutes personal and joint assets (indicating the method of acquisition or source).
• It is advisable to review the agreement if there are significant life changes (birth of children, major acquisitions, changes in legislation).
• Do not rely on standard templates; draft the contract for the particular situation.
• Record alimony issues separately if they are important to you even beyond statutory requirements.​

When is it worth concluding a prenuptial agreement?
A prenuptial agreement is not “insurance against love” but an instrument for organising property relations, creating transparent “rules of the game” and minimising risks in case of divorce or death of one of the spouses. It should be considered where there are substantial differences in income, assets, business, inheritance, children from different marriages or simply when both parties want clarity in property relations. At the same time, it is crucial not to allow psychological pressure or restriction of rights in such agreements. Always have the contract reviewed with a professional lawyer in order to avoid disputes and legal pitfalls.​

Author – Svitlana Krutorohova, attorney at the law firm “WINNER”. If you have questions or issues related to the preparation or conclusion of a prenuptial agreement, obtaining legal advice or protecting your interests in family disputes, please contact our qualified lawyers for a thorough assessment and professional assistance.