Colombian Prenuptial Agreements

Things to know when dealing with prenuptial agreements in Colombia

Prenuptial Agreements in Colombia: What You Need to Know

Prenuptial agreements, or "capitulaciones matrimoniales" in Spanish, are legal contracts signed by couples before marriage to establish the terms of property ownership and financial arrangements in the event of divorce or death. These agreements are recognized under Colombian law and offer a practical way to protect individual assets and clarify financial expectations.

In this guide, The Law Connection Group Colombia provides a detailed overview of prenuptial agreements in Colombia, their benefits, legal requirements, and steps to create one.

What Is a Prenuptial Agreement?

A prenuptial agreement, or capitulaciones matrimoniales, is a legally binding contract signed by a couple before getting married in Colombia. It serves as a financial safeguard by clearly outlining how assets, debts, and other financial matters will be handled during the marriage and in case of divorce or death.

Key Aspects of a Prenuptial Agreement in Colombia:

Ownership of Pre-Marital Property
- The agreement specifies which assets each spouse owned before marriage and ensures they remain the separate property of the original owner. This helps avoid disputes over ownership in the event of separation.
Division of Marital Property
- Without a prenuptial agreement, Colombian law generally considers assets acquired during the marriage as part of the marital partnership (sociedad conyugal), which is typically divided 50/50 upon divorce. A prenuptial agreement allows couples to override this default rule and establish their own terms for property division.
Management of Debts
- It clarifies whether debts incurred before or during the marriage will be treated as joint or separate liabilities, protecting one spouse from being responsible for the other's financial obligations.
Financial Responsibilities During the Marriage
- The agreement can define how financial duties, such as household expenses, investments, and savings, will be managed between the spouses.
Inheritance Rights
- In Colombia, inheritance laws grant spouses certain rights to their partner’s estate. A prenuptial agreement can modify or waive these rights, ensuring that assets are distributed according to the couple’s wishes, rather than default inheritance laws.

Additional Considerations:

Must be signed before marriage: Once a couple is legally married in Colombia, they cannot create or modify a prenuptial agreement.
Must be formalized through a public deed: The agreement must be signed before a Colombian notary to be legally valid.
Cannot waive alimony: While the agreement can establish financial responsibilities, it cannot override legal obligations such as child support or spousal support.

A well-drafted prenuptial agreement provides clarity, financial protection, and peace of mind for both spouses, ensuring a fair arrangement in case of unforeseen circumstances.

Why Consider a Prenuptial Agreement?

A prenuptial agreement is not just for the wealthy—it is a practical legal tool that benefits any couple by providing financial clarity, security, and protection. In Colombia, marriage generally creates a marital partnership (sociedad conyugal), meaning that assets acquired during the marriage are jointly owned unless otherwise specified. A prenuptial agreement allows couples to override this default rule and establish their own financial terms.

Here are the key reasons to consider a prenuptial agreement:

Protection of Personal Assets

Ensures that property, savings, and investments owned before the marriage remain separate.
Prevents the automatic inclusion of pre-marital assets in the marital estate.
Protects family businesses, heirlooms, or personal investments from being divided in case of divorce.

Debt Management & Financial Responsibility

Shields one spouse from liability for the other's debts incurred before or during the marriage.
Defines who is responsible for certain financial obligations during the marriage.
Helps avoid unexpected financial burdens if one spouse has significant pre-existing debts.

Avoiding Legal Disputes in Case of Divorce

Pre-determines asset division, minimizing potential conflicts and lengthy legal battles.
Reduces stress, emotional strain, and legal costs associated with divorce proceedings.
Creates a clear financial agreement, preventing misunderstandings or disputes.

Customized Financial Arrangements

Allows couples to establish personalized financial terms rather than relying on standard Colombian marriage laws.
Can specify how household expenses, savings, and major purchases will be handled.
Helps couples set expectations and avoid financial disagreements during the marriage.

Safeguarding Inheritance & Family Interests

Ensures that children from previous relationships inherit certain assets as intended.
Can prevent family property from being transferred to an ex-spouse.
Protects specific beneficiaries, such as relatives or business partners, in case of death.

Planning for the Future

Provides financial clarity and security for both spouses, allowing them to focus on their relationship.
Can include provisions for spousal support in case of separation.
Helps couples align financial expectations, reducing uncertainty.

Legal Considerations in Colombia

Must be signed before marriage: Once a couple is legally married, they cannot create or modify a prenuptial agreement.
Must be notarized: The agreement must be formalized through a public deed before a Colombian notary.
Cannot waive legal obligations: The agreement cannot override child support or certain spousal rights mandated by law.

Legal Framework for Prenuptial Agreements in Colombia

Prenuptial agreements, known as capitulaciones matrimoniales, are legally recognized in Colombia and governed by the Colombian Civil Code. These agreements serve as binding contracts that define the financial terms of a marriage, ensuring asset protection and financial clarity for both spouses. However, to be legally enforceable, prenuptial agreements must comply with specific legal requirements.

1. Recognition Under Colombian Law

Legal Basis: Prenuptial agreements are regulated by the Colombian Civil Code (Código Civil Colombiano) and must adhere to strict formalities to be valid.
Binding Nature: When properly executed, a prenuptial agreement is legally enforceable and cannot be disputed unless it violates legal principles or public policy.
Overrides Default Marital Regime: In the absence of a prenuptial agreement, Colombian law assumes a marital partnership (sociedad conyugal), where assets acquired during marriage are jointly owned. A prenuptial agreement allows couples to define their own financial terms instead of relying on the default legal framework.

2. Mandatory Notarization for Validity

Written Agreement: The prenuptial agreement must be in writing—verbal agreements are not recognized under Colombian law.
Notarization Requirement: The agreement must be signed before a notary public (notario público) to be considered legally valid.
Pre-Marriage Execution: It must be finalized before the marriage takes place—once a couple is legally married, they cannot create or modify a prenuptial agreement.

3. Public Registration for Transparency & Enforceability

Registration with the Notary’s Office: To ensure legal validity and transparency, the prenuptial agreement must be registered in the public notarial records.
Third-Party Awareness: Public registration ensures that the agreement is legally recognized and enforceable against third parties, such as creditors or business partners.
Proof of Terms: In case of legal disputes, the registered agreement serves as irrefutable evidence of the financial arrangements agreed upon before marriage.

4. Irrevocability & Modification Restrictions

Cannot Be Changed After Marriage: Once signed and registered, a prenuptial agreement is irrevocable. If a couple wishes to modify the terms, they must draft a new agreement and remarry under those revised conditions.
No Postnuptial Agreements: Unlike in some other countries, Colombia does not allow postnuptial agreements (contracts made after marriage to alter financial arrangements).
Legal Limitations: While prenuptial agreements provide financial flexibility, they cannot override certain legal obligations, such as child support or spousal rights mandated by Colombian law.

Key Provisions to Include

A well-drafted prenuptial agreement typically includes the following provisions:

List of Individual Assets: Clearly identifies property owned by each party before the marriage.
Management of Marital Assets: Specifies how assets acquired during the marriage will be divided.
Debt Responsibility: Outlines who will be responsible for debts incurred before and during the marriage.
Inheritance Rights: Establishes how property will be distributed in the event of death.
Business Ownership: Protects ownership interests in a business or professional practice.

Steps to Create a Prenuptial Agreement in Colombia

Creating a prenuptial agreement (capitulaciones matrimoniales) in Colombia requires careful planning and adherence to legal formalities to ensure its enforceability. Below is a step-by-step guide to drafting and finalizing a valid prenuptial agreement in Colombia.

Consult a Family Law Attorney

Understand the Legal Framework: A Colombian family law attorney will explain how prenuptial agreements work under the Colombian Civil Code, ensuring compliance with legal requirements.
Clarify Rights & Obligations: An attorney helps you understand how the agreement will impact asset ownership, debt management, inheritance, and financial responsibilities.
Avoid Future Legal Issues: Poorly drafted agreements can lead to disputes or invalidation. A lawyer ensures that the agreement is clear, enforceable, and free from contradictions with Colombian law.

Have an Open Financial Discussion with Your Partner

Full Disclosure of Assets & Debts: Both partners should transparently share their financial situations, including property, investments, debts, and business interests.
Discuss Financial Goals: Agree on key matters, such as:
- Will assets remain separate or joint?
- How will debts be managed?
- What happens in case of divorce or death?
- How will inheritance rights be handled, especially for children from previous relationships?
Prevent Misunderstandings: A well-structured discussion ensures both parties fully understand and agree on financial matters, preventing future conflicts.

Draft the Prenuptial Agreement

Customize the Agreement: Work with a lawyer to draft a comprehensive agreement that reflects the couple’s specific needs and financial preferences.
Include Key Clauses:
- Ownership of pre-marital property – Ensures that assets acquired before marriage remain separate.
- Marital property division – Defines how assets acquired during the marriage will be handled.
- Debt allocation – Clarifies whether each spouse is responsible for their own debts.
- Financial responsibilities – Specifies how expenses, savings, and major purchases will be managed.
- Inheritance rights – Determines whether the surviving spouse will have claims to the other’s estate.
Ensure Fairness: Courts may reject agreements that appear one-sided or unfair. The terms should be reasonable and protect both parties.

Sign & Notarize the Agreement

Legal Formalization: Both parties must sign the agreement before a Colombian notary public (notario público).
Voluntary Consent: The agreement must be entered into freely and without coercion—if one party is pressured, the contract may be invalidated.
No Changes After Marriage: The agreement must be finalized before the wedding. Once married, couples cannot alter or create a new prenuptial agreement under Colombian law.

Register the Agreement in the Public Registry

Public Record Requirement: To ensure legal enforceability, the agreement must be registered with the Notary’s Office where it was signed.
Third-Party Recognition: Registration allows the agreement to be recognized by financial institutions, courts, and other relevant entities.
Proof of Agreement: If legal disputes arise, the registered document serves as official evidence of the agreed-upon financial terms.

Challenges and Tips

Open Communication:
- Discussing a prenuptial agreement can be sensitive. Approach the conversation with respect and transparency.
Avoid Ambiguity:
- Clearly define all terms and provisions to prevent disputes.
Seek Independent Legal Advice:
- Each party should have their own lawyer to ensure the agreement is fair and legally sound.
Plan Ahead:
- Start the process well before the wedding to avoid last-minute stress.

Why Choose The Law Connection Group Colombia?

At The Law Connection Group Colombia, we understand the importance of protecting your financial future. Our experienced lawyers can:

Provide personalized advice tailored to your circumstances.
Draft comprehensive and enforceable prenuptial agreements.
Ensure compliance with Colombian legal requirements.

We are committed to helping you build a secure foundation for your marriage.

How Can We Assist You Today?

If you are looking for assistance with a Prenuptial Agreement in Colombia, contact us today for a free consultation.