How important is it to have a prenup/postnup agreement in my marriage?

by Quatro Legal Corporate Team | Mar. 29, 2024 | Article, Corporate

In a Marriage, as The Beatles once sung, “all you need is Love”. Well, not quite… and as sad as it may sound it is important to think about taking care of the assets that you may own or acquire before or during the time that you are married to your partner.

The prenuptial and postnuptial agreements are often taken as taboo topics. No one, ever, has expected to say “I do” with the thought of things going sour with the exception of the average gold diggers. Having a prenuptial/postnuptial agreement in place is a wise and proactive way to understand and regulate how asset distribution takes place in case things don’t work out.

Imagine that you plan a road trip, you make a roadmap on where to go, which activities you want to do, or what you want to experience in the trip. Prenuptial/postnuptial agreements are just the same, it is a roadmap for your future, together or separately, that will provide clarity and peace of mind to the couple if the agreement is required to take effect.

But ok, let´s examine prenups and the postnups. In Costa Rica both figures are known as “nuptial capitulations”, this includes both figures in the same bubble, but keeping their differences and specific characteristics.

Nuptial capitulations can be defined as an agreement between future or current spouses regarding the asset distribution in case of a termination of the marriage. In this agreement, the spouses define the path to take regarding the asset distribution if the spousal relationship comes to an end.

The main function of this legal entity is to avoid negotiating the distribution of the assets that were acquired before or during the matrimonial relationship, since divorces are most of the time unfriendly and can feel unfair. If the nuptial capitulations are defined before or during the marriage, in a stage where the spouses are enjoying a positive part of their relationship, the distribution of the assets will be made in a friendly and more positive environment. This allows the process to provide satisfaction to both parties. Also, if the distribution is within divorce negotiations, having it in writing will ensure the fairest distribution of the assets of the spouses.

At this point, we know what nuptial capitulations are. However, since in Costa Rica they are named the same, does this mean that prenups and postnups are the same? No! They are similar but they have a key difference. The main difference is, of course, when each of them takes place. The prenuptial agreement will take place before the marriage comes into effect. The postnuptial agreement will take place after, just before the legal end of the marriage (this legal end of the marriage commonly referred to as what Ross Geller from Friends is good for: divorce)

To make it easier: the prenup will take place before the marriage and could be a requirement between the soon to be spouses to get married. The postnup will take place after the marriage and before a divorce. It could be a requirement between the spouses to sign the divorce.

Regarding the formalities: they are pretty much the same for both types of agreements. The most important is that both parties fully acknowledge and understand the extent and implications of the agreement. Once they are satisfied with the terms, the future spouses or soon to be ex-spouses must attend a Public Notary´s office to sign a public deed where all the clauses and special arrangements will be included.

What can be included in the clauses of the agreement? Pretty much everything that you like as long as the provisions are legal, moral, and according to common uses. It is a common practice to include properties, houses, cars, company shares, furniture, among other assets the spouses may find relevant and important to include. The most important point is that all assets are described in a specific manner to identify the assets and rules of distribution.

A nuptial capitulation can be created before or after the wedding has taken place, and can be changed, modified, simplified, or even canceled at any point where the spouses agree to jointly do so.

So YES, nuptial capitulations are very important to ensure a fair and equal distribution of the spouses´ assets, to protect them, and ensure that are made in a manner that answer to fairness in every specific situation.

If you have any queries regarding this topic or want to specify more or change your current address, don’t hesitate to contact FELIPE ESQUIVEL at I will be glad to assist you!

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