As stipulated in article 37 of our Family Code, prenuptial agreements in Costa Rica consist of the pact or agreement, in public deed before a Notary Public, made by the future spouses, intended to regulate the patrimonial aspect of the conjugal partnership, and can include both present and future assets.

In Costa Rica, the prenuptial agreement has another name, which is marriage capitulations, however, many people refer to it as prenuptial agreement, after the homonymous legal figure of the United States of America; It consists of an agreement between the future spouses about the assets they possess at the time or even those they may possess in the future.

This type of contract is concluded on the occasion of the marriage and is intended to regulate and organize the purely patrimonial aspects of it. Normally, it is carried out between the spouses or future spouses; However, there is no limitation to be able to include, within the conventions, other members of the family (children and ancestors).

It is advisable to carry out a prenuptial agreement whenever marriage is an option, or, once married, to regulate and order the family’s patrimonial regime. In the event of divorce, what was indicated in the prenup agreement prevails, thus avoiding discussions about the assets that could be considered community property.

Prenuptial agreements in Costa Rica have four fundamental elements that must be known and understood:

a) Its contractual nature: This means that the marriage agreements are considered as a contract, usually bilateral, where there must be an agreement between both spouses or future contractors.
b) The fact of being granted under the assumption of a marriage: In the event of being granted before marriage, there must be a will of both parties to marry.
c) They regulate aspects of patrimonial order: In the contract of prenuptial agreements, only purely patrimonial matters may be agreed, issues such as custody, upbringing and education of children, interrelation regime, child support or between spouses, among others, cannot be agreed.
d) The substantial nature of the execution in a public deed: This contract must be obligatorily executed before a Notary Public and in a public deed. If this requirement is missing, it will not have legal effects.

It is clear that, at the time of marriage, the will of both parties is that it be for life, so this issue is often neglected; However, the most advisable thing is to have a prenuptial agreements in Costa Rica contract to be able to foresee, in the future, possible contingencies between the spouses.

If you require advice regarding prenuptial agreements or any other issue related to family law, at ERP Lawyers we have a specialized team that can advise you in the best way. Do not hesitate to contact us!