Many pitfalls when entering into a prenuptial agreement

According to Statistics Norway, 37 percent of marriages entered into now will end in divorce, if the latest divorce rates hold. In 2022 alone, 8,204 Norwegian couples ended their marriage.

It is therefore not surprising that more and more people draw up a prenuptial agreement, either before or after they have married.

Joint ownership is the norm

– In the prenuptial agreement, the spouses agree on the property arrangement, i.e. whether the couple will have separate property or partial separate property, says Elvebakk at Advokatfirmaet Hjort.

Without a prenuptial agreement, the parties have joint property as a property arrangement, she points out.

– Often the prenuptial agreement also determines the ownership of individual assets, for example that the cottage is the woman’s separate property, that the home is owned separately with half each, or that all assets are the individual’s separate property, she adds.

– Please be aware that separate property can result from orders in connection with a spouse receiving a gift or an inheritance, as separate property orders can be given by the donor or legatees. The other spouse does not necessarily need to be aware of the order, and the spouses cannot in principle change such an order by agreement between them.

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Form requirements are important

– Are there certain formal requirements for a prenuptial agreement?

– Yes, the prenuptial agreement must be in writing and signed by two witnesses, who are with both spouses when they sign the prenuptial agreement, the lawyer states.

– The witnesses must be aware that it is a marriage pact they are witnessing.

– Does the prenuptial agreement have to be registered to be valid?

– No, but if you want to do that, you send it to the marriage contract register in Brønnøysund, and the contents of the marriage contract will then be publicly available, answers Elvebakk.

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– If the prenuptial agreement concerns immovable property, it must also be registered with the Mapping Authority in order to obtain legal protection.

Not always valid

– Which clauses should the prenuptial agreement contain?

– It is basically up to the spouses what they want to agree, but be aware that the Marriage Act has specific frameworks for what can be agreed in a prenuptial agreement, says the Hjort partner.

– For example, you cannot agree in advance what will happen in the event of a divorce, but how the settlement will be will of course follow the provisions of the prenuptial agreement.

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Elvebakk also warns that prenuptial agreements entered into in Norway will not always be valid if the couple later moves abroad.

– The validity of a Norwegian prenuptial agreement in other countries follows this country’s rules, so if you move abroad, you should definitely investigate this with a local lawyer, she advises.

Depends on the country

According to the lawyer, however, it is possible to agree in a Norwegian prenuptial agreement that Norwegian law is to be used.

– If you settle abroad, you must check the rules there anyway, as the rules for international private law can vary from country to country, she advises.

– It is true that there is some coordination within the EU/EEA, and there are to some extent harmonized rules between the Nordic countries.

If the couple lives in Norway, but owns a holiday home in, for example, Turkey, this can also present complications, as real estate is often covered by local law.

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– It also applies to inheritance, so you should check that, and in addition matters related to, for example, forced sales and mortgaging of real estate often follow the law of the country where the property is located, she adds.

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May be unreasonable

– What disputes do you most often see in connection with prenuptial agreements?

– Disagreement about a prenuptial agreement typically boils down to the fact that the prenuptial agreement is unreasonable, replies the lawyer.

– A rule in the Marriage Act states that the marriage contract can be revised in such cases, but the threshold is high.

Elvebakk has also seen cases where one spouse demands compensation from the other, for example because one has contributed to the other’s separate property increasing in value.

– Here, too, the threshold is high, and in general you have to assume that when you have entered into a prenuptial agreement, it will be based on the way it is written, she clarifies.

– Consequently, you should think carefully before you sign.

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“Never quite sure”

– How do you avoid disputes?

– You can never be completely sure of avoiding disputes and disagreements, not least because the spouses’ situation may have changed a lot during a long marriage, Elvebakk points out.

– My best advice is that, firstly, you ensure that what is agreed is thoroughly discussed between the spouses, and that it is ensured that both understand what is agreed and what it entails both in the short and long term.

For example, it is important to be aware that the prenuptial agreement also applies in the event of death, according to Elvebakk.

– Furthermore, the wording of the prenuptial agreement must be clear and not open to misunderstandings, she says.

Founded on consensus

In general, Elvebakk recommends that you think carefully about whether a prenuptial agreement is needed, look far into the future, and make sure that any prenuptial agreement is founded on genuine agreement.

– There will easily be conflicts afterwards, if someone feels pressured to enter into an agreement, she explains.

– Otherwise, I advise openness about finances and trusting conversations about what can be reasonable and fair solutions, including ensuring that neither spouse risks being left on the ground in the event of a break-up.

This article was previously published in Finansavisen