03/10/2023
By – Isabela Rodrigues Alves de Sá e Silva
The prenuptial agreement (“Prenup”) is an important tool for estate and succession planning, once it allows the parties to adopt the marriage regime that will suit them better (as allowed by Article 1.640, caput and sole paragraph, of the Brazilian Civil Code – “CC”).
However, the uses of a Prenup are not limited to the adoption of a marriage regime: it may regulate other important questions relating to the couple, provided that principles of human dignity, equality between the spouses and sharing, are duly observed. The so-called non-disposable rights (“direitos indisponíveis”), such as the right to alimony (Article 1.707 of CC) or the right of the surviving spouse to the deceased’s inheritance (Article 426 of CC), constitute rights that cannot be waived under the Prenup.
A recent decision of a Minas Gerais Public Records Court, admitting the validity of a Prenup by means of which the parties agreed on a R$180,000.00 penalty for infidelity, ratifies the wide range of matters that may be addressed under a Prenup.
Such decision represents a landmark in Brazilian family law, as it enforces the spouses’ right to intimacy and autonomy (within their relationship), limiting the State intervention in this regard.
The regulation of the above as well as other matters related to the parties’ disposable rights (“direitos disponíveis”), upon the execution of a Prenup, not only avoids conflicts between the parties, but also contributes to the preservation of their wealth and affective bonds.
However, for the wider use of a Prenup to be truly beneficial to those involved, it is important that the document be adequately drafted, not only to accurately reflect the main priorities and concerns of each party, but also to ensure that the terms agreed will be eventually enforceable.
