Prenuptial Agreements - What You Need to Know Before Entering into a Prenuptial Agreement

Entering into a prenuptial agreement is an important decision that can have a significant impact on your and your spouse's finances, both during the marriage and in the event of a divorce. A prenuptial agreement is a legally binding contract between spouses that regulates ownership relations between them. It can be used to agree on exceptions to the statutory equal division rule that would otherwise apply.

What must be included in a prenuptial agreement?

The opportunity to enter into prenuptial agreements is provided for in the Marriage Act of July 4, 1991, no. 47, chapter 9. The law sets out, among other things, rules on what can be validly agreed in a prenuptial agreement, formal requirements, and the legal effects of the prenuptial agreement on the spouses and creditors.

In a prenuptial agreement, spouses can agree that specific assets will be excluded from division (separate property) in the event of a potential breakup. Everything not explicitly made separate property will be subject to equal division (joint property). Spouses can agree on:

• Full separate property, covering all assets they own and will acquire later

• Partial separate property, which only includes specific assets or values

Formal Requirements and Validity

For a prenuptial agreement to be valid, it must:

1. Be entered into in writing

2. Be signed by both spouses in the presence of two witnesses who must also sign the prenuptial agreement

3. Be submitted for registration in the Prenuptial Agreement Register to gain legal protection, i.e., protection against the spouses' creditors

If the formal requirements are not met, the prenuptial agreement will not be valid.

Considerations when Entering into a Prenuptial Agreement

When entering into a prenuptial agreement, one should carefully consider which assets one wishes to keep out of division as separate property. It may, for example, be reasonable to agree that assets or values brought into the marriage, or larger future inheritances, should be separate property.

On the other hand, it may seem unfair to make too much separate property, especially if one spouse stays home with shared children.

Amendment and Revocation of a Prenuptial Agreement

A prenuptial agreement can, in principle, be freely amended or revoked by the spouses jointly. Any amendment agreement must be entered into according to the same formal requirements applicable to the formation of a prenuptial agreement.

If one spouse were to breach the agreement, for example, by transferring separate property funds to joint property, the other can demand the disposition be reversed under the rules of the Debt Collection Act.

Effects upon Separation, Divorce, and Death

The effects of a prenuptial agreement generally occur first upon separation or divorce. Upon the death of one spouse, the surviving spouse is generally entitled to take over all that is joint property, as well as a minimum inheritance of 4G (as of 2024, approximately NOK 475,000) from the deceased's separate property.

This applies unless otherwise provided in the prenuptial agreement combined with a will. It is thus important to have a conscious approach to the interplay between a prenuptial agreement and estate planning.

Conclusion

The consequences of a prenuptial agreement can be far-reaching, both for the spouses and their potential heirs. It is therefore always advisable to seek advice from a lawyer with expertise in family law before making such an agreement.

The lawyer can then consider the spouses' specific situation and needs and help to formulate a balanced agreement that protects both parties' interests appropriately.

Even though a prenuptial agreement may seem like an unromantic element when planning a life together, it can prove to be very sensible in the long run. No one knows what the future will bring, and it is reassuring to know that there is a contractual agreement on how the wealth should be divided if the relationship should one day end.

By entering into a well-considered prenuptial agreement, you show each other mutual respect and care.