The much-talked-about marital property agreement, or more legally correctly, the agreement on the regulation of property-law relations, has recently seen the light of day in the Slovenian legal order with the entry into force of the Family Code (hereinafter: the “DZ”) in April 2019.

Article 85 of the DZ defines a property regime agreement (hereinafter also: agreement) as a contract by which the spouses agree on the content of their property regime, which is different from the legal regime. It should be added at this point that a contract may also be concluded during the marriage or even between partners who do not wish to marry but only wish to regulate their property relations. The agreed contractual property regime applies from the conclusion of the property regime agreement, unless, of course, the agreement provides otherwise.

The law does not define the exact content of such a contract, but such contracts must nevertheless not contain provisions that are contrary to the Constitution, to mandatory rules or to moral principles. A contract with the latter provisions would be a null and void contract.¹ If the contract is void, the spouses are subject to the legal matrimonial property regime. The DZ divides the matrimonial property into community property and separate property.

Article 67 of the DZ provides that the community property of the spouses shall be all property rights acquired by work or for consideration during the marriage and the cohabitation of the spouses. Marital property is also property acquired on the basis of and with the help of, or derived from, community property. Furthermore, Article 74 of the DZ provides that, in the case of the division of community property, the spouses shall be deemed to have an equal share in it, but may prove that they have contributed to the community property in a different proportion. An insignificant difference in the contribution of each spouse to the community property shall not be taken into account. However, the separate property of each spouse is that which he or she acquired before the marriage or gratuitously during the marriage.² Irrespective of its origin or the manner of its acquisition, the separate property of a spouse is property of minor value for his or her exclusive personal use.³

A pre-nuptial agreement allows the partners/spouses to settle their property regime for the duration of their marriage, and also in case of divorce. Such a contractual property regime applies to the spouses as from the conclusion of the property regime agreement, unless they agree otherwise. Such a contract shall take effect on the date of the celebration of the marriage or on such date after the celebration of the marriage as the future spouses may specify in the contract.

In Article 86 of the DZ provides that a contract on the regulation of property relations may also contain an agreement on mutual maintenance and an agreement on maintenance in the event of marriage.

The contract on the regulation of property-law relations must be concluded in a notarial deed and entered in the register[4] of contracts at the Notary Chamber of Slovenia. Furthermore, the law provides in Article 87 for the notary’s obligation to explain. This means that before concluding the marital property agreement, the notary must inform the spouses of the legal matrimonial property regime and also inform them of the property rights and obligations provided for by law.

This is why we can see the advantage of a pre-nuptial agreement, as it allows the spouses/partners to agree on their property relations on their own, in an arbitrary way, and saves a lot of time and money in the event of a divorce or dissolution of the matrimonial community. However, when concluding a contract, it is definitely advisable to have it well drafted by a lawyer in order to define and protect the interests of both parties as precisely as possible. We welcome the preparation of a property settlement agreement in our office.

[1] For example, the provision that the consent of the other spouse / partner is not required for the sale of a salad property is null and void.

[2] Article 77(1) of the DZ.

[3] Article 77(2) of the DZ.

[4] See Article 90 – 94 of the DZ.