The Importance of Prenuptial Agreements in Costa Rica

por BG&A | Last updated Jul 15, 2024 | English

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In Costa Rican legal and family matters, prenuptial agreements, also known as marital agreements, are a highly important legal instrument. These agreements allow couples, either before or during their marriage, to establish clear and precise terms regarding the management and distribution of their assets, both present and future.

The significance of this agreement goes beyond simple asset arrangement; it promotes responsible and foresighted planning of married life, providing both parties with legal and emotional security. In a legal context that recognizes both marriages and common-law unions, including same-sex couples, prenuptial agreements serve as an essential tool for protecting personal and family interests, ensuring that in any eventuality, there is a clear and pre-established legal framework governing property relations.

Legal Framework of Prenuptial Agreements in Costa Rica

Definition and Characteristics

In Costa Rica, prenuptial agreements are defined by the Family Code as pre- or post-marital contracts that allow spouses to agree on the management of their present and future assets. This contractual agreement is designed to regulate the economic regime of the marriage, allowing for personalized asset management tailored to the specific needs and desires of each couple.

Formal Requirements

For prenuptial agreements to have legal validity in Costa Rica, they must meet certain formal requirements. Essentially, the agreement must be executed by public deed, drafted before a Notary Public, and subsequently registered with the Public Registry. This formality ensures the official recognition of the agreement and its enforceability in case of disputes or marital dissolution.

Modifications and Effects

Prenuptial agreements are not immutable; they can be modified after the marriage, provided that the established legal procedures are followed, including court authorization if minors are involved. These modifications must be published in the official gazette and re-registered to affect third parties. This modification mechanism ensures that prenuptial agreements can adapt to changing marital circumstances, maintaining their relevance and effectiveness over time.

Practical Implications of Prenuptial Agreements

Asset Protection

Prenuptial agreements offer significant asset protection in Costa Rica, allowing spouses to clearly define the ownership and management of their assets before and during the marriage. This agreement is particularly important in cases of marital dissolution, as it pre-determines the division of assets, avoiding prolonged and costly disputes. By specifying which assets are personal and which are marital, prenuptial agreements provide a clear legal framework that protects individual and family interests.

Special Cases

Recent rulings by the Constitutional Chamber have expanded the applicability of prenuptial agreements to special situations, including common-law unions and same-sex couples, ensuring greater inclusivity and rights protection in Costa Rica. This means that more people can now benefit from the legal security provided by prenuptial agreements, allowing them to effectively define and protect their assets, regardless of the nature of their union.

Benefits and Limitations

The benefits of prenuptial agreements in Costa Rica are notable, primarily highlighting the asset clarity they provide and the prevention of future conflicts between spouses or their heirs. By explicitly defining asset management before marriage, these agreements foster transparency and prevent misunderstandings or disputes in case of separation or divorce.

However, there are inherent limitations to these provisions. Prenuptial agreements cannot include terms on non-asset-related issues, such as child custody, nor can they contravene mandatory legal provisions. Additionally, the requirement for notarization and registration with the Public Registry can be seen as rigorous procedures, although necessary for legal validity and effectiveness.

Procedure and Practical Recommendations

Drafting prenuptial agreements goes beyond merely writing a document; it requires the intervention of a family law expert who not only understands the depth and scope of its importance but is also skilled in designing a preventive structure. This professional must be able to anticipate multiple variables, considering not only the protection of the couple and their current assets but also potential future changes and the security of their children.

A specialized Family Law attorney will ensure that the prenuptial agreement is meticulously crafted to prevent conflicts, protect asset interests, and secure the well-being of the family as a whole.

Recommendations:

Legal Advice: Seek advice from a family law specialist to ensure the agreement complies with all legal provisions and accurately reflects the parties’ intentions.
Clarity and Detail: Clearly specify the distribution of assets, including future acquisitions, to avoid ambiguities.
Updates: Consider updating prenuptial agreements in the event of significant changes in assets or family circumstances.
Protection of Minors: Ensure the agreement safeguards the rights of minor children, if any.

Tips to Avoid Common Problems:

Complete Documentation: Maintain a detailed record of assets and their value at the time of signing the agreement.
Transparency: Both parties should fully disclose their financial situation to avoid future disputes.
Informed Consent: Ensure that both spouses fully understand the agreement’s scope and implications of the agreement.

By following these guidelines, prenuptial agreements can be an effective tool for asset management in marriage, providing security and clarity for both parties and preventing future family crises.

Jurisprudential Perspective

The jurisprudential perspective in Costa Rica regarding prenuptial agreements shows significant evolution in the interpretation and application of these legal figures. Through judicial resolutions, courts have reaffirmed the importance of guaranteeing the property autonomy of spouses, allowing them to freely determine the management of their assets and properties.

The Constitutional Chamber, in particular, has extended significant rights to same-sex couples and common-law unions, recognizing equality before the law, marking a milestone in protecting the rights of all individuals in the family context, regardless of their sexual orientation. These rulings reflect a commitment to equality and justice, aligning with principles of non-discrimination and recognition of family diversity and protection of civil property rights.

Our Perspective: Prenuptial Agreements as a Love Insurance

We believe in love and share the excitement of a marriage meant to last forever. Therefore, we understand that the idea of signing a prenuptial agreement is often met with skepticism and is stigmatized as a sign of distrust or a predictor of marital failure. Nothing could be further from the truth.

The statistical reality in Costa Rica reveals that about 60% of marriages end in divorce. This is a reality that invites reflection and practicality, viewing prenuptial agreements as akin to medical or car insurance: «it’s better to have it and not need it than to need it and not have it.»

Being proactive in something as important as our family is an act of mutual love and responsibility. The vast majority of couples who have faced divorce with well-drafted prenuptial agreements experience fewer personal conflicts, fewer family frictions, and a quicker transition from mourning to personal recovery. This enhances better future relationships for ex-spouses, which is highly beneficial for their children and interpersonal relationships.

As experts, we can assure you that prenuptial agreements ensure the emotional and financial well-being of both spouses, allowing them to move on with their lives more quickly and with less pain.

Prenuptial Agreements: A Marital Agreement in Costa Rica

Prenuptial agreements emerge as an indispensable tool for asset and family planning in Costa Rica, allowing couples to establish a legal framework that protects their future assets and rights. At BGA Abogados, with over 26 years of experience and a success rate exceeding 96%, we are your strategic ally in drafting these agreements.

Our practice shows that prenuptial agreements should be personalized, reflecting the unique conditions and expectations of each couple, far from standardized documents or templates that do not consider specific family dynamics. Conflict prevention and family protection are our priorities, ensuring that every prenuptial agreement we facilitate is meticulously designed to serve our clients’ best interests and protect the most valuable thing a person has: their family.