What can we arrange in the marriage settlement?
It is important that you have good knowledge of the rules before creating a marriage settlement.
It is chapter 9 of the Marriage Act that determines what you can arrange. It can be a good investment to get assistance from a solicitor to set up the marriage settlement.
We do not have the opportunity to advise on what you should arrange in a marriage settlement. When we receive a marriage settlement for official registration in The Register of Marriage Settlement, we do a formal check based on the submitted documents. This involves a simple check to verify that formal rules are met, in order to prevent invalid marriage settlements from being officially registered. If the marriage settlement meets the requirements connected to the official registration, it will be officially registered. Official registration in The Register of Marriage Settlements does not provide a guarantee for the actual validity of the marriage settlement. The case processing time is normally 2-3 days.
Overview of the most common agreements
If you wish to have an arrangement other than joint property, you may agree upon separate property in a marriage settlement. By arranging separate property, a future settlement may become more predictable. Agreement of separate property means that assets you own are kept out of division if you divorce, or if one of you die,
- Complete separation of property implies that the value of everything each of you own, should not be divided upon divorce or death. Nothing will then be joint property.
- Partial separation of property is limited to appertain to specific values, or parts of these, which are not to be divided upon divorce or dead.
You can arrange different terms in the marriage settlement. You may for example limit the separation of property to apply for a specific number of years or to a specific time. It is also possible to agree that the separate property becomes joint property if you have children together or if one of you die.
If you exchange or sell an asset which is separate property, the payment for the asset will still be separate property. Return on separate property will be separate property as well. If you do not wish such an arrangement, you can, for example, agree that returns should not be separate property.
If you wish to postpone the distribution of deceased’s estate, when one of you dies, you may agree to retain undivided possession of assets with the deceased’s separate means in the marriage settlement. When one of you dies, the other is only entitled to this if it is agreed upon in the marriage settlement. If the deceased has children with others than the survivor, they must give consent for the survivor to retain undivided possession of assets. Such a consent cannot be registered, but it can be stated on page four of the marriage settlement form.
You can limit the ability to retain undivided possession of assets with separate property to apply to specific objects or assets. You can also stipulate that undivided estate with separate property should only apply for a limited period of time. The terms you agree to cannot be in conflict with the Marriage Act or other legislation.
In a marriage settlement you may agree that it should not be possible to claim unequal division when the marriage ends. This can apply for all assets or parts of the assets which you brought into the marriage, and what you later have received as inheritance or as a gift from others than the spouse.
You can also
- agree that the unequal division of property should be shared equally if the division of estate occurs after a specified point of time
- agree that the unequal division of property should be shared equally if you have children together
- agree that the right to claim unequal division should be different upon divorce and death
You can combine the options to suit you.
You cannot agree in a marriage settlement what is to be unequally shared when the marriage ends.
If you are going to give each other gifts such as property, boat or car, this must be included in the marriage settlement in order to be valid. You need to register the marriage settlement to obtain legal protection for the gift. This does not apply to gifts that are regarded as ordinary, nor to gifts consisting of pensions, life insurance, life annuities or similar financial arrangements that secure the other spouse.
You may also agree on terms for the gift. The most common are the right of habitation, the right of use and the right of pre-emption. You cannot agree that the gift should be returned to the donor if the marriage ends.
If you are going to give property as a gift to your spouse, you must also register a new ownership with the Mapping Authority to obtain legal protection for the gift.
When you give each other gifts, it is the ownership of the gift that is given away. If the gift is not made the beneficiary’s separate property, the value of the gift will be part of the common property, which initially should be shared equally upon division.
If you wish to include agreements in the marriage settlement that cannot be registered, it is possible to write this on page four in the marriage settlement. Undeniably invalid agreements will not be approved. If in doubt, we recommend contacting a solicitor for advice and guidance.
Examples of what you can include, but cannot be registered are
- agreements that include loans and debts
- agreements about right of habitation, right of use and pre-emptive rights, unless the right is a condition for a gift
- approval about the right to retain undivided estate
- agreement about the partition of inheritance, but you must make sure that the requirements for wills are fulfilled