Why Choose a Prenuptial Agreement over a Separate Property Regime Between Spouses, and How to Protect One’s Assets?

A prenuptial agreement is a legal instrument through which spouses or prospective spouses may regulate their proprietary relations in advance, both prior to and during the marriage. Although it is a relatively new institution in Bulgarian law, introduced by the Family Code of 2009, it has gradually established itself as a reasonable and practical means of avoiding future disputes. Couples often hesitate to conclude such an agreement for emotional reasons; however, from a legal perspective, it constitutes a form of prevention and protection of the interests of both parties.

The essence of the prenuptial agreement lies in the fact that it governs exclusively the property relations between the spouses. By means of such an agreement, the parties are free to determine the rights each shall have over property acquired before and during the marriage, how such property shall be managed, and how it shall be distributed in the event of divorce. It may be agreed whether certain assets shall remain the personal property of one spouse, become co-owned, or fall within the regime of matrimonial community property. Furthermore, the spouses may regulate matters relating to family expenses, participation in obligations, and maintenance between them, both during the marriage and after its dissolution. Clauses regarding child maintenance may also be included, but only insofar as they concern property aspects.

The legislator sets clear limits on the content of a prenuptial agreement. It may not regulate personal relations between spouses, nor issues relating to parental rights, contact arrangements with children, or their place of residence. Likewise, clauses concerning inheritance are inadmissible, as such matters are governed by the rules of succession law. Any provision that contravenes the law or affects the rights of third parties shall be null and void and shall produce no legal effect.

A prenuptial agreement constitutes a formal legal transaction, and its validity requires strict compliance with a prescribed form: it must be concluded personally by the parties in writing, with notarisation of both the signatures and the content. Representation by proxy is not permitted. This enhanced form is intended to ensure that the parties genuinely express their will, understand the legal consequences of the agreement, and that it complies with statutory requirements. The notary plays a key role in this process by verifying the identity and legal capacity of the parties, explaining the legal implications, and ensuring the lawfulness of the content.

The procedure begins with the negotiation of terms and the preparation of a written draft. Once the final version is agreed upon, the parties appear before a notary and sign the agreement, which is then certified. The prenuptial agreement is subject to registration in a special register of matrimonial property relations, and where it affects rights in rem over immovable property, it must also be entered in the Property Register. If concluded prior to marriage, it enters into force upon the conclusion of the marriage; if concluded during the marriage, it takes effect from the date of signing or from another date agreed by the parties. The spouses may amend, supplement, or terminate the agreement at any time, provided the same formal requirements are observed. Matters not regulated in the agreement shall be governed by the statutory regime of matrimonial community property.

Bulgarian law also provides an alternative means of regulating matrimonial property relations—namely, a declaration for the choice of a separate property regime. Under this regime, each spouse retains ownership of the property acquired during the marriage, and no community property arises. This declaration must also be made in writing, with notarised signatures. The choice of a separate property regime takes effect upon notarisation and determines how the spouses shall manage and dispose of their property during the marriage and in the event of divorce. The declaration is registered in the register of prenuptial agreements maintained by the notary, thereby ensuring publicity and legal protection of the chosen regime.

The principal difference between a prenuptial agreement and the separate property regime lies in the degree of regulation and flexibility. While the declaration for separate property establishes a general statutory regime under which each spouse independently acquires property, the prenuptial agreement allows for detailed and tailored arrangements. Through it, the parties may combine different solutions—for example, providing for separation of property with respect to certain assets and co-ownership with respect to others, as well as regulating specific matters such as the use of the family home, allocation of expenses, or post-divorce maintenance.

On the other hand, the separate property regime is easier to implement, as it does not require the drafting of a complex agreement or extensive negotiation of clauses. It is suitable in cases where the spouses seek a clear distinction of their assets without detailed regulation. In contrast, the prenuptial agreement provides significantly greater legal certainty in more complex property relations but requires careful drafting and professional legal assistance.

The choice between a prenuptial agreement and a declaration for a separate property regime depends on the specific needs and relations between the spouses. While the separate property regime offers a clear and straightforward solution, the prenuptial agreement allows for more precise and individualized regulation of property relations, making it particularly useful where substantial assets or complex financial arrangements are involved. Following notarisation, both the prenuptial agreement and the declaration for separate property have legal force and may be relied upon before a court in the event of property disputes. Any change to the chosen regime may only be effected through a new notarised transaction between the spouses, thereby ensuring clarity and legal certainty in the management of family property.

This article examines some aspects of the topic and does not represent full analysis of the problem. 

Author: Petya Stoevska, Dr. Sc