Marriage contract – a novelty in Slovenian family legislation

Slovenia is among the countries that have always attached great importance to the traditional concept of family and marriage. The invalid Law on marriage and family relationships, which is still being used, is also based on this view. The latter defines a marriage as a legally regulated partnership of a man and a woman. The provisions of this law, regulating marriage, are mandatory in their nature and with the exception of individual provisions relating to spouse maintenance and management of joint assets, do not allow to freely regulate mutual property relationships between the spouses. By adopting the new Family Code that entered into force on April 15th 2017, but will be used as of April 15th 2019, profound changes have been adopted in the field of property relationships between spouses. The new provisions are optional and are used only if the spouses cannot reach an agreement otherwise.

Slovenia is among the countries that have always attached great importance to the traditional concept of family and marriage.  The invalid Law on marriage and family relationships, which is still being used, is also based on this view. The latter defines a marriage as a legally regulated partnership of a man and a woman. The provisions of this law, regulating marriage, are mandatory in their nature and with the exception of individual provisions relating to spouse maintenance and management of joint assets, do not allow to freely regulate mutual property relationships between the spouses. By adopting the new Family Code that entered into force on April 15th 2017, but will be used as of April 15th 2019, profound changes have been adopted in the field of property relationships between spouses. The new provisions are optional and are used only if the spouses cannot reach an agreement otherwise.

A so-called contract on the regulation of property relationships (marriage contract) has been introduced, which is, in addition to individual provisions, in which it appears, regulated by the provisions of Articles 85-94 of the new Family Code.

Marriage contracts, known throughout the world as prenuptial agreements (prenups) are already more than 2.000 years old. The first contract of this nature, known to us from history, was written in Hebrew and was called The Ketubah. This contract secured the financial situation of women in case of a divorce or the husband’s death. If it came to a divorce or the husband’s death, the woman was entitled to a share of her husband’s assets. Prenups have also appeared later in the 7., 9. and 15. century, but flourished in the 19. century in the US. Until the Married Women’s Act was adopted, the regulation applied in the US that all assets, which the wife had or inherited, are automatically transferred to the husband, which is why women were constrained to conclude marriage contracts and thusly protect their assets, so in case of death or divorce, the assets would not be transferred to the ex husband or their heirs.

By adopting marriage contracts in the Slovenian legal system, Slovenia joined countries of the Anglo-Saxon legal system, which have developed extensive case law in relation to these contracts. Some countries with the Euro-continental legal system are also familiar with marriage contracts, primarily France, Belgium, Germany, the Netherlands, Poland, Switzerland, Denmark, Norway etc., by adopting the Family Code, Slovenia has joined these countries.