Prenup vs Postnup contract: What’s the Difference and Who Needs One?

Whether you’re just about to tie the knot or are happily married, every couple can benefit from learning about marital agreements, better known as prenuptial and postnuptial contracts. Although two people generally get married because they love one another, once married, the couple’s property, assets and liabilities by default falls into what is known as the community of acquests. This means that marriage is also a contractual pact that binds a couple’s finances and resources. In Malta, a couple can opt out of the community of acquests regime either by entering into a prenup or a postnup.

 

What is a Prenuptial Contract?

If you’re planning to get married in the near future, one of your decisions should be whether or not you should create a prenup.

A prenup is a written contract entered into between two people before they get married. Its purpose is to regulate both parties’ assets and liabilities during the marriage and also in the event of a separation or divorce. Most prenups list the property and debts each person owns and specify whether once married, their property will be governed separately by the regime known as separation of estates (where each spouse is the master of their own property and can take all decisions without the intervention of the other spouse) or by the community of residue under separate administration (where the acquisitions made by each of the spouses during the marriage are held and administered by the spouse by whom such acquisitions are made).

 

Pros	Cons
A prenup can help ease the fear that one spouse is entering the union for financial gain.	Asking for a prenup can seem unromantic.
Drafting a prenup forces couples to address sensitive financial matters before they get married, thereby limiting misunderstanding later on.	A poorly drafted prenup may not function the way the couple wanted it to.
Protecting family possessions from each other’s debts	Having a prenup can lead to one of the spouses being excluded from decision making processes
If an engaged person has children from a previous relationship, a prenup can provide stipulations for their financial future as well as for the future of children born from the marriage.

 

What is a Postnuptial Contract?

If you are already married, you may have concerns because you did not sign a prenup, and now you want to. You can still sign a postnuptial agreement. Unlike with a prenup contract, you any married couple wishing to sign a postnup would first need to apply for authorisation by the Court to enter into postnup contract.

 

Who Should Get a Prenup or Postnup?

Most people assume that marital contracts are only reserved for the rich and famous, but that isn’t entirely true. While they are often used to protect the assets of the wealthier spouse, couples of more modest means are increasingly turning to them. Some couples may want to clarify their financial rights and responsibilities during the marriage, and others may want to use it to protect themselves from each other’s debts. This means that almost any couple getting married or already married can benefit from one, especially because the agreement can be tailored to each couple’s needs.

N.B. The information provided herein does not constitute legal advice. For further information, please feel free to call +356 99491230 or send an email to avukatdemaria@gmail.com