And will you take on my debts too? Marital property agreements don't insult your love, quite the opposite.

“I have decided that life begins after divorce,” says one of my clients with a bright smile as he leaves the meeting room after his marriage has been legally dissolved. However, a significant number of spouses soon realize that the divorce decree is just the beginning of the real battle - the fight over property. And I’m not talking about the struggle for shared property, let alone the other spouse’s property. Unfortunately, in most cases, it is simply about staying afloat and avoiding the spiral of debts and executions.

Marriage is not only a formalized instrument of shared love but also a legal institution that gives us rights and obligations towards our spouse and children. Throughout history, it has also involved property, and the central legal concept concerning marital property is protection. In recent years, I have become an advocate for mandatory legal premarital preparation - a minimum legal requirement before entering into marriage. It should primarily focus on informing prospective spouses about what falls under the joint property of spouses and what to be cautious about regarding property when entering into marriage. With each marriage (not including registered partnerships), a so-called community property of spouses is formed in the Czech Republic unless the spouses agree otherwise.

Recently, I met with a client who was about to get married. Her prospective husband was not a very successful entrepreneur. From the beginning of their relationship, she suspected that something was amiss. Most of the money was deposited in her name, and she knew about some debts, but according to her partner, “everything goes through the business ID, there’s nothing to worry about.” However, shortly before the wedding, just two weeks prior, she learned about additional debts after her partner lost his car under unclear circumstances. She didn’t want to change the wedding date but growing concerns about the debts prompted her to seek legal advice regarding marital property at the last minute. “Will I be responsible for his debts as his wife, even though I have nothing to do with them? I can’t cancel the wedding just because of the debts, right?”

We Share Assets and Are Liable for Them

According to the law, both spouses are jointly responsible for joint debts with their entire property within the joint property of spouses. If one spouse deals with joint property (enters into a loan agreement, mortgages or transfers real estate, enters into a purchase agreement) beyond ordinary management, they always need the consent of the other spouse for such actions. For example, did the husband borrow a significant amount of money without the partner’s consent? In such cases, as a wife who disagrees with the contract, she can seek the invalidity of such actions, which is a complex process requiring legal assistance. Meanwhile, enforcement proceedings are already underway, and creditors don’t ask for consent.

Even though the wife never acted on behalf of the companies and later divorced him, the debts and executions likely remained with her for the rest of her life.

The purpose of the community property of spouses was originally to protect women as the weaker party in the relationship, so they would not be subjected to the arbitrary disposal of property by their spouse and to ensure their financial security if the spouse left the family. The importance of the community property of spouses as a fundamental social value is still discussed in current professional literature on civil law. While other European countries (such as Germany) have the default regime of separate property (if spouses want to have joint property, they have to agree on it), the Czech Republic favors the strictest possible option - the automatic creation of community property, unless the spouses agree otherwise in a marital property agreement.

Except for exceptions (typically property acquired by one of the spouses through inheritance or gift), everything acquired by each spouse during the marriage (income from employment, business, shares in companies, rental income) belongs to the community property of spouses. Therefore, it doesn’t matter if the spouses actually have separate accounts in their names - the funds acquired during the marriage on these accounts belong to both spouses. It doesn’t matter if, for example, one spouse buys a property or a car “in their name” (using funds from their account or solely from their income) - such property acquired in this manner is still included in the community property of spouses.

Despite never acting in the companies themselves and later divorcing him, the wife likely remained responsible for the debts and executions.

Unfortunately, the communal aspects of marital property are often overlooked in public awareness, and they only come to the forefront when one spouse or the entire marriage faces serious problems, as in the case of one of my recent clients, Mrs. Jana.

Mrs. Jana came to me with a wish to get a divorce after almost forty years of marriage because her husband had “started misbehaving” and “changed.” In reality, her husband’s behavior involved taking out more and more loans from banks and non-banking companies, spending money on companions and alcohol, signing bills of exchange, and completely depleting the family savings. He kept all these transactions secret from his wife, and she only found out about them by chance. She decided to take legal action only when the amount of debts exceeded half a million Czech crowns – at a time when the income of both spouses amounted to their old-age pension, making it a devastating amount for her future life.

Mrs. Jana’s story has a rare happy ending. Thanks to her children, she didn’t lose her roof over her head. She informed the banks of her disagreement with the loan agreements, managed to leave her husband, and completed the divorce proceedings. With the dissolution of the marriage, the community property of spouses ceases to exist by law, and Jana will no longer be responsible for her husband’s debts incurred after the divorce. Nevertheless, even after a considerable time has passed since the divorce, she still confides in me about her worries that another hidden debt, of which she had no knowledge, will surface, and her ex-husband won’t be able to pay it off.

A Marital Property Agreement Can Be a Double-Edged Sword

So, what does a marital property agreement (commonly known as a “premarital agreement”) actually entail? Only fans of popular American reality show The Real Housewives might imagine two scenarios: in the event of divorce, either the wife or the husband leaves the marriage either completely empty-handed or with a hefty “settlement,” or for each child born (or even for each son), the wife receives a substantial amount of money as some kind of maternity benefit.

However, the Czech legal system does not explicitly recognize the concept of a premarital agreement. According to the Civil Code, prospective spouses can enter into a marital property regime agreement or an agreement to limit community property or agree that community property does not arise at all. Easily, quickly, and inexpensively, they can regulate virtually everything related to joint property, including any future debts.

In practice, it is not complicated or financially burdensome. Prospective or current spouses (a marital property agreement can be concluded before entering into marriage or during its duration) can approach any notary with whom they will draft and sign the wording of the marital property agreement during one visit. They can arrange the future property arrangement according to their preferences - each person can maintain their own property, and no community property is created, or it will only include the income of one spouse or a jointly owned property.

However, the agreement can also contain just one single paragraph - stating that each spouse is responsible for their own debts, and the other spouse is not liable for them. Whether the marriage lasts one year or forty years, both partners will know throughout that if their shared life brings risky business, a failed investment, or mental illness, the other spouse will always remain protected (and with them, a certain standard of living for their shared children).

However, in the hands of the economically stronger partner, a marital property agreement becomes a double-edged sword. Couples often visit notary and law offices when the significantly wealthier spouse pressures their partner into signing an agreement that will prove unfavorable in the future. For example, if prospective spouses agree to a regime of separate property, it practically means that the economically stronger spouse is not obligated to share their income with the family. Each spouse will only have their income and their property, and in the event of a divorce, there will be no property settlement.

I believe that family law attorneys should be obliged to inform spouses about their options for protecting their property. As a society, we should also stop perceiving a premarital agreement as an insult to the other partner or their mutual love. I also feel that the historical message of community property as a protective tool for the wife has disappeared from the legal system and practice, and for many spouses, community property has become more of a financial trap - whether due to debts and executions or as a tool for blackmail during the dissolution of a marriage. No one can force you to include in your love the obligation to pay for someone else’s debts and poor decisions.

Zdroj: Heroine