In Greece, pre-nuptial agreements are known to us through the movies and TV series of foreign (mainly Anglo-Saxon) countries. The husband-to-be, probably ” deeply rich”, or his mother, invites the prospective bride to the office of their personal (family) lawyer a few days before the wedding. He graciously slips the surprised girl the drafted agreement, which, acting as an ‘insurance policy’ in case of divorce, ‘shatters’ her dreams of a happy future for the young couple. Are prenuptial agreements really so “cliché” and so “far away” from Greek reality? What exactly are they and ultimately who are they for? This article attempts to provide answers to these questions and to examine how and in what way a pre-nuptial agreement can help couples in Greece as well to have, if not such a happy future, at least a less “unhappy” divorce.
What exactly does a prenuptial agreement mean? Are there pre-nuptial agreements in Greece?
The term “prenuptial agreement” (“prenup”) is indeed foreign and refers to an agreement concluded between two future spouses in order to regulate their relations from the marriage they are about to celebrate on the one hand, and the rights and obligations of each of them in case of separation and dissolution of the marriage on the other hand. Its introduction in practice is probably due to the fact that those countries where the institution was created, such as the UK, provide, in simple terms, for the union of the property of the spouses. This means that in the event of separation, as we are also now familiar with from various TV series and films, the spouses ‘bleed’ financially, as they are required to negotiate the division of their property. In view of this, the advance settlement of ‘who gets what’ in the event of divorce is for most couples in these countries a useful and beneficial estate planning, which saves the ‘future ex’ spouses from numerous and complex court proceedings.
In Greece, on the contrary, in the absence of a different choice by the spouses, the principle of property autonomy automatically applies, which means that each spouse keeps his or her property separate from the other. This principle is counterbalanced by Article 1400 CC, which provides for the so-called claim to share in the acquisitions, i.e. the possibility for one spouse, if he or she has contributed in any way to the increase in the other’s property, to claim the return of the part of the increase that comes from his or her own contribution.
However, in our country too, the spouses may enter into an agreement before their marriage in which they regulate in advance the property relations arising from it, even if the agreement is not called a ‘prenuptial agreement’. In particular, according to the provision of Article 1403 of the Civil Code, the spouses may, before or during the marriage, opt by contract for a community of property regime to regulate the property consequences of the marriage.
By opting for this system, the property acquired during the marriage shall belong to them in equal shares without any right of disposition by each of them of his or her ideal share. The same contract may specify the extent of the community of property (i.e. to which assets it will extend), the way in which the community property will be administered, as well as the way in which any mutual claims for restitution will be settled and the distribution of the community property after its expiry.
In very practical terms, this means that property, for example, which one spouse may purchase during the marriage, will be owned equally by both of them in the case of this agreement, whereas conversely, if no provision has been made for this, the property will be the property of the spouse who acquired it. The other spouse, only after the dissolution of the marriage or in the case of a three-year separation, will be able to claim the “share” corresponding to his/her contribution to this property increase, because, for example, through his/her moral support, professional and social networking that he/she offered to his/her spouse, etc., he/she managed to secure a capital from his/her work which he/she invested in the purchase of the property in question.
In other words, Greek law provides for this way of one spouse’s participation in the property of the other acquired during the marriage and not the ‘automatic’ transfer of the property acquired jointly by the two spouses. Exception: the above-mentioned community of property agreement, which can be concluded both before and during the marriage.
Furthermore, a valid postnuptial agreement between spouses is an agreement concerning maintenance after the dissolution of the marriage. Such agreements are concluded before the divorce and may either be subject to the condition of the dissolution of the marriage or take the form of a pre-agreement. They may validly agree to waive the right to maintenance for the future, to capitalise maintenance and pay it in one lump sum, to pay maintenance for a specific period or irrespective of whether the legal conditions for the maintenance claim to arise are fulfilled , and even to pay maintenance irrespective of the beneficiary’s circumstances.
Even closer to the logic of pre-nuptial agreements is the institution of the cohabitation agreement in Greece. Already at the stage of the conclusion of the cohabitation agreement under law no. 4356/2015, before its dissolution, the partners can choose to waive in advance any maintenance claims each against the other for the period after the termination of the pact, as well as to set different conditions for the creation of this claim (e.g. by stipulating that the former partner will not take precedence as a maintenance debtor over other descendants or other relatives and so on). Similarly, the partners may, when concluding the contract, waive in advance their right to legal succession in the event of death and even agree that certain assets will be excluded from the claim to share in the acquisitions of the other.
So the advance “arrangement” of what happens after separation is not so foreign to our legal order after all, even if it is not referred to under the “fancy” umbrella of “prenup”. This fact is relevant to the analysis below on how the Greek courts should deal with the signing of a prenuptial agreement abroad and under foreign law, as is often the case with international couples.
Especially in the case of international couples.
The autonomy of the spouses in regulating their relations since marriage becomes more pronounced in the case of international couples, who, in view of their union, are faced with the additional question of which law will apply in the event of their separation. In our country, as a member state of the European Union, both Regulation 1259/2010 on the law applicable to divorce and legal separation and Regulations 2016/1103 and 2016/1104 on matrimonial property regimes and property consequences of registered partnerships apply.
Thus, spouses who either reside in Greece but at least one of them has a different nationality, or who reside in another country but have a connection with Greece (e.g. it is the country of origin of one of them), can, in principle, determine by written agreement the law on the basis of which the separation or the dissolution of the marriage to be concluded will be decided. In particular, according to Article 5 of Council Regulation 1259/2010, they may choose as the applicable law (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum.
Similarly, the spouses or future spouses may, on the basis of Article 22 of Council Regulation 2016/1103 on matrimonial property regimes, designate as the law applicable to those relationships either (a) the law of the State where the spouses or future spouses, or one of them, is habitually resident at the time the agreement is concluded; or (b) the law of a State of nationality of either spouse or future spouse at the time the agreement is concluded. Likewise, the partners or future partners may, by virtue of the same Article of Council Regulation 2016/1114 on the property consequences of registered partnerships, agree to designate as applicable law (a) the law of the State where the partners or future partners, or one of them, is habitually resident at the time the agreement is concluded, (b) the law of a State of nationality of either partner or future partner at the time the agreement is concluded, or (c) the law of the State under whose law the registered partnership was created.
In practice: a British couple residing in Greece, which is therefore their country of habitual residence (in other words, the country that is the centre of their vital interests, as the case law puts it) may choose English law as the applicable law both for the conditions of dissolution of the marriage and for the regulation of their property relations. This means that if there is a ground for divorce it will be decided under English law and accordingly the spouses’ property will be considered, schematically, “community property” without the need to opt for a community property system. Similarly, a couple consisting of a Greek and a British couple, irrespective of where they live, will be able to choose Greek law (the law of the nationality of one of them) as the applicable law if they wish to ensure that their property is treated as separate and in this way want to limit the claims they could have against each other in the event of a dissolution of the marriage.
Finally, under the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (hereinafter referred to as the 2007 Hague Protocol), spouses or partners, as maintenance creditors and maintenance debtors respectively, may designate one of the following laws as applicable to a maintenance obligation -a) the law of any State of which either party is a national at the time of the designation; b) the law of the State of the habitual residence of either party at the time of designation; c) the law designated by the parties as applicable, or the law in fact applied, to their property regime; d) the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation.
Already, therefore, a basic question concerning the relations arising out of the marriage, the law applicable to its dissolution, the property relations of the spouses and the maintenance obligations between them can be the subject of a pre-nuptial and post-nuptial agreement. Since the law chosen may also be the law of a third country (non-EU member state), e.g. the law of an American state or the United Kingdom, which provides for the conclusion of pre-nuptial agreements, the question arises whether, following such a choice of law agreement, the Greek courts may consider the pre-nuptial agreement itself, which the spouses may sign in order to regulate the individual issues arising from their marital partnership, to be valid.
Prenuptial agreements before the Greek Courts – Opposition to public policy?
The case law does not give us many examples of the treatment of “imported” prenuptial agreements by the Greek courts, but this does not necessarily mean that such cases do not exist; on the contrary, it is very likely that they appear incidentally in cases, but the Greek law practitioner does not take them into account, since they are an institution foreign to our law. Very fragmentarily we can consider the following cases:
In the case decided by the Athens Court of Appeal in its decision No. 418/2017, the wife of South African nationality, claiming the value of her contribution to her ex-husband’s estate, invoked against him the applicable South African law and further the fact that “before the marriage between them was consummated, the spouses signed the protocol number … /21-12-1994 prenuptial agreement, pursuant to which, they chose to apply to their matrimonial property relations, the system of increment, under the provisions of Chapter One of the Matrimonial Property Act 1984, under which system, she is entitled to an amount equal to 50% of the increment of her husband’s property during the marriage, by reason of her constructive contribution to that increment“. The Court of Appeal, contrary to the First Instance Court, which incorrectly applied Greek law and awarded the value of the plaintiff’s contribution by the presumption of 1/3 as provided for by Greek law, held that South African law should be applied and requested a rehearing in order to obtain an opinion on South African law. The fact that under that law the application of the pre-nuptial agreement provided for therein was also sought did not appear to be a problem for the court, which might otherwise have held that recognition of that institution and its consequences would be contrary to Greek public policy.
Conversely, in its decision No. 1051/2013, the Athens Court of First Instance held that the defendant’s claim that his ex-wife was not entitled to the value of her contribution to the increase in his property because she had signed a relevant clause in a pre-nuptial agreement, is not legitimate, as the provision of article 1400 of the CC, which provides for the claim to participate in the acquisitions, is of mandatory law. Similarly, the court does not appear to have been concerned as to whether the signing of such a contract is in itself valid, but held that the spouses cannot, by agreement, derogate from a provision of mandatory law.
Although the sample of judgments which have dealt with the relevant issues is therefore very small, one could see in the case-law a first direction: that is, that the prior regulation of the spouses’ property relations on the basis of a pre-nuptial agreement in the case where the applicable foreign law, which provides for the drawing up of such agreements, is applicable, is possible, provided that Greek public policy is not affected by the invocation of the consequences of the agreement in this particular case.
Moreover, as is well established, the mere fact that Greek legislation does not provide for an institution does not in itself amount to a conflict with the public policy of that institution (in this case prenuptial agreements). Let us also not forget that under English law, which provides for the possibility of drafting pre-nuptial agreements, the validity of each agreement is ultimately judged by the courts on a case-by-case basis, depending on whether they have been drafted in a “fair” manner (e.g. no concealment of a large part of one party’s assets when signing the agreement, both parties proceeded to draft the agreement having obtained independent legal advice, etc.).
Further, the concept of a conflict of laws in Greek public policy necessarily “narrows” as our legal order becomes internationalised. The autonomy of the will of the parties in the field of family law, recognised by virtue of the above provisions of the Regulations and the Hague Protocol, as higher ranking legal rules, argues that the existence of an agreement on the regulation of the couple’s relations before marriage cannot in itself be considered a priori and without a specific examination and assessment of its consequences in the specific case, to be contrary to public policy.
Moreover, as already mentioned, the law on maintenance already recognises the possibility for spouses, in view of the dissolution of their marriage, to validly waive claims for maintenance between themselves and to have it paid in a lump sum in the form of a financial ‘settlement’. In other words, our legal system is familiar with the reality of couples who wish to settle their relationship in good time after divorce. For the same reason, moreover, the power to issue a consensual divorce is now vested in the notary, who in fact validates the parties’ agreement, and not in the Court of Justice.
Similarly, in nearby Italy, where the institution of prenuptial agreements is also foreign, in its recent decision No. 21111 of 29 July 2024, the Court of Cassation held that the spouses’ agreement in view of the dissolution of their marriage to divide joint business assets and a financial settlement of 106. 000 euros in favour of the wife had to be taken into account by the courts of first and second instance, which ignored the agreement and wrongly awarded an additional monthly maintenance allowance to the wife. This judgment essentially recognises the validity of pre-nuptial agreements or other property agreements concluded during the marriage, provided that they have the effect of eliminating or reducing the financial inequality between the spouses at the time of the divorce (see ‘Valgono i Patti Prematrimoniali in Italia?‘, by Armando Cecatiello.
Conclusions
In conclusion, Greek legislation provides in principle for the possibility of prior regulation of the couple’s property relations in the case of a civil partnership, while in the case of marriage it is similarly possible to choose between the community of property system and the separation of property. Similarly, postnuptial agreements between spouses concerning maintenance after the dissolution of the marriage are accepted. The prior ‘settlement’ of property between spouses is therefore not alien to our legal order. The element of private autonomy becomes even more pronounced as the field of action becomes ‘internationalised’, since international couples can, on the basis of the provisions of European law, choose the law that is ‘closer’ to them as the applicable law in their relations and, in this context, can also conclude pre-nuptial agreements, the validity of the provisions of which must be judged on a case-by-case basis by the Greek courts and cannot be considered a priori to be contrary to Greek public policy.
Read more about international divorces in Greece.