12-07-2023

WHAT IS A PRENUPTIAL AGREEMENT?

If you and your partner are getting married or are already married, you may have talked about how your finances should be managed.

When you enter into a marriage in Denmark, you automatically get joint property.

The joint property (or shared property) includes all assets that you each own. This means both the assets you acquired before and during the marriage. This will mean that at the end of the marriage, you will have to divide your net assets equally between you. However, this assumes that your fortunes are positive.

In some cases, however, one does not want to have joint property (shared property), and it is therefore possible to deviate from the starting point of joint property by entering into a prenuptial agreement.

In order for a prenuptial agreement to be valid, a prenuptial agreement must meet certain conditions and formal requirements, and therefore you cannot simply enter into a prenuptial agreement orally or by making an agreement on a piece of paper. A prenuptial agreement is only valid when the following conditions are met:

1. Prenuptial agreements must be drawn up in writing and signed by the parties
2.  Prenuptial agreements must be registered (tinglyses)

Especially for prenuptial agreements on separate property, a requirement for specification also applies, i.e., clarifying what the prenuptial agreement is about.

A prenuptial agreement on separate property is a deviation from the principle of shared property in marriage. Separate ownership allows the spouses to agree on an advance waiver of a part of their property in the event of separation, divorce, and death. In this way, the part of the spouse's property that is covered by separate property is unaffected by the marriage.

The separate property types

Prenuptial agreement on separate property can be entered into on different terms. In the following, some of the most important forms of separate ownership will be reviewed superficially, with the intent to clarify the differences. Separate property can be agreed upon for one or both spouses.

Separate property in case of divorce

Separate property in case of divorce means, as the name suggests, that the property in divorce is exempt from division, and thus not included in the division of property. In the event of the death of a spouse, the separate property will become shared property and will be divided as usual. The surviving spouse can thus, with this form of separate ownership, sit in the undivided property with the deceased's separate property in (case of) divorce.

Completely separate property

Completely separate property means that the separate property is exempt from division both in the event of separation and divorce and in the event of the spouse's death. Complete separate property is built on top of divorced separate property, which is why it is not possible to establish separate property, which only applies upon the death of the person in question, and not upon divorce.

Combination separate property

Combination of separate property is a combination of divorce ownership and complete ownership, which can apply to one or both spouses. There are many options in this regard, but the most common is for the spouses to agree on divorce separate property, with completely separate property for the surviving spouse. Just like purely complete separate property, separate property upon death in the case of combined separate property can only be obtained "on top of" separate property in divorce.

Acquisition separate property

Acquisition of separate property is an option to limit the separate property to a time or a way in which the separate property is acquired. A common way of using this type of separate property is to agree that everything the spouses bring into the marriage must be separate property, while all that is acquired during the marriage must be shared property.

When is it possible to make a prenuptial/postnuptial agreement in Denmark?

It is possible to make a prenuptial/postnuptial agreement if you have citizenship in Denmark and/or a place of residency in Denmark at the date of the conclusion of the agreement.

Our comment

We always recommend that spouses consider whether it would be a good idea to enter into a prenuptial agreement, and in this way secure themselves as best as possible in the event of divorce (and death).

However, it can be difficult to figure out which type of separate property will suit your needs, and we therefore always recommend that you get advice and help to draw up a prenuptial agreement.

At Bremer Advokater, we are always ready to help if you want advice in connection with entering into a prenuptial agreement.

Date: 12.07.2023

Authors: Asger Søderberg & Anna Lundvig