Ttradition dictates that every marriage story begins with the anxious bride with the bouquet in her hand, the moved groom, the witnesses in the background and the reading of the ritual formula with which one promises eternal love. The duties are clear: support and sharing in good times and bad, in health and in sickness. Without prenuptial agreements. Sometimes though the couple cannot resist and the partners find themselves arguing in front of a lawyer (when it goes well), or to a judge (when it goes bad).
«It is so as not to find ourselves embroiled in a legal case with potentially disastrous consequences that today more and more people are considering the possibility of signing a prenuptial agreement» explain Daniela Missaglia and Valeria De Vellis, divorce lawyers. «These are, in practice, all those written agreements with which the future spouses regulate – most of the time before the wedding ceremony, but also during married life – the patrimonial and economic rights and obligations of each of the two in the event of separation or divorce”.
Prenuptial agreements: useful even for those who have no scepter or crown
A lot is known about prenuptial agreements signed by princes, kings and ultra-millionaires. Just search on any search engine to find out the details of the agreements signed between Beyoncé & Jay-Z; Jessica & Justin Timberlake; Brad Pitt & Angelina Jolie. «But let’s clear the field of misunderstandings: i Marriage agreements are useful to everyone, even to those of us without crowns and sceptres” quips Missaglia. «This is because the values at stake can change but not the substance.
You can argue over a castle just as much as over a garage or a cupboard, for several million euros as well as for small sums. And then the signed marriage agreements create a barrier.” Among the people most interested in stipulating these agreements are those who the lawyer defines as repeat offenders of marriage, “that is, those who have been burned by the experience of a first divorce and who would like to protect themselves in view of a new union”; then the very wealthy families, “who have an important heritage to manage and protect”.
A book explains why prenuptial agreements also help those who fight over a cupboard (Getty Images)
Prenuptial agreements: young women are the most interested
But requests are increasing from young female managers, «who have recently reached top positions and an excellent salary, who wish to protect their savings and investments to avoid, in the event of love ending, having to share a part of the assets accumulated with one’s (ex) partner”. In particular, the two lawyers, authors of the book #Matrimonial Agreements. To live happily ever after and away from the courts (Sperling&Kupfer), recommend this tool to young and very young women.
«It’s not romantic to sign a divorce agreement before saying “I do” because in the days leading up to it you think about everything except that that dream of love could turn into a nightmare. But”, they underline, “it could be really wise to equip oneself with a tool to define, in advance and in times of peace, what they will not be able to establish when the first winds of war rise, when esteem and affection will fly away like the doves just released the wedding ceremony is over.” Of course, we are talking about a «revolution more of mentality than of jurisprudence» but, observes Missaglia, «in the end, if, as the French chemist Lavoisier said, nothing is created, nothing is destroyed and everything is transformed, how could we delude ourselves that only is love immutable?”.
No reference to divorce allowance
In the United States, the two future spouses can indulge themselves by including absolutely everything in their marriage agreements, regulating, for example, the haircut, the way of dressing, the number of sexual relations, as well as, obviously, calibrating the amount of money paid in case of divorce depending on the number of children or years of marriage. Melania Trump, in view of the new race for the White House, has decided to rewrite the prenuptial agreement for the third time, to protect herself and increase the trust fund in the name of her son Barron who, in a few weeks, will reach the age of majority. «In Italy we are far from all this» specifies De Vellis.
«You cannot, for example, use a prenuptial agreement to regulate certain issues – technically they are called unavailable rights – such as child custody conditions, visitation rights and related economic conditions». Even more importantly, «the signed prenuptial agreement cannot contain the quantification and terms by which one of the two future spouses should provide for the maintenance of the other. In practice it cannot refer to a possible divorce allowance.” So what can you predict? «It puts down in black and white what the spouses intend to regulate in relation to patrimonial and financial aspects, in terms, for example, of divisions of assets or monetary funds, settlement of insurance compensation or in relation to the transfer of real estate or company shares upon the occurrence of certain events.” An example: «Let’s imagine a young couple in which the future wife moves into the house already owned by her husband and participates financially in the renovation works. With prenuptial agreements it is possible to predefine the compensation that she is entitled to in the event of separation, in the event that she is forced to leave the home.”
Not yet expected, yes allowed
There is a small obstacle, at the moment, that stops couples from relying on these agreements. Despite the undoubted advantages that such agreements would bring in the prevention of marital disputes, unlike many other countries, «in our country prenuptial agreements are not yet provided for by law. This does not mean that they cannot be signed in any case”, clarifies De Vellis, “because in any case prenuptial agreements could in the future provide proof of what the spouses considered right and fair for them, in a moment of peace and harmony”.
Lately the Cartabia Reform, in force from 1 March 2023, has introduced an epochal change also in matters of family law, providing that couples in crisis can file the two requests for separation and divorce with a single document (even online), making the bureaucratic procedures faster and more streamlined. Furthermore, adds Missaglia, the Court of Cassation with a ruling dated 16 October 2023, «confirmed that separations and divorces by mutual consent can also be done with a single proceeding, effectively recognizing the validity of all the agreements made before the divorce, protected from the harmful consequences of a conflictual separation, with a significant saving in economic and human resources”. Effectively aligning Italy with other European countries: in the Netherlands, in Germany, in Sweden the civil codes themselves provide them.
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