Prenuptial Agreements in Costa Rica

April 27, 2007

Costa Rican law allows husband and wife –either to-be or already married – to enter into an agreement in which they decide how certain key issues of their marital relationship will be regulated in the event of a divorce.

Though “prenuptial” – meaning occurring or existing before a marriage – may not seem an accurate way to describe such an accord, no other English term encompasses the substance of this type of agreement. But the fact of the matter is, unlike in many other countries, in Costa Rica one can sign this type of agreement before or during marriage, and even after it has been signed and during the marriage itself, it can be changed or terminated if both parties so wish.

Many people decide to take the big step and get married, either for the first time or after a previous marriage, already having significant assets and with the possibility of acquiring more in the near future. It is rational and logical to worry about what might happen should the marriage end, not only with regard to preserving one’s own wealth but also protecting other family members and their future share of one’s assets.

One of the main elements that should be considered in a prenuptial agreement is the distribution of assets in the event the marriage is dissolved. The law states that upon a divorce, each of the former partners is entitled to 50% of the assets acquired during the marriage, excluding gifts or items freely obtained and those already owned by either of the parties before marriage. However, a prenuptial agreement should not only consider  what would happen to assets acquired while married but also clearly provide an inventory of all assets owned by either party before the marriage, so that no confusion about their status may arise in the future.

Prenuptial agreements can also cover several other important matters, such as custody of children and alimony, and in many cases can help to avoid bitter litigation and major deterioration of the relationship between the former husband and wife.

These types of agreements are very formal in Costa Rica, and require the presence of both parties before a Costa Rican notary public to execute and enter them into the notary’s “protocol book,” a special book issued and authorized by the National Archives. The document must be drafted in Spanish; if either of the parties does not speak the language, the notary must translate the contents and acknowledge this fact in the document itself. After it has been signed, the document must be sent to the Public Registry to become a matter of public record. Foreign documents or agreements not following Costa Rica’s legal requirements will not be valid or enforceable in the country.

For those with assets outside the country, it is highly recommendable to coordinate these efforts with an attorney in the country where the assets are located, and probably sign another agreement with the content and formalities required in said country.

Costa Rica has established common-law marriage, in which two people living together, without being officially married, acquire rights similar to married couples if certain requirements, including passage of time, continuity and constancy, are met. However, the law does not permit prenuptial agreements to govern or waive any rights acquired through common-law marriage.

For more legal advice, contact Lang & Asociados at 204-7871 or visit www.langcr.com.

 

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