Introduction to Prenuptial Agreements in Costa Rica

Prenuptial agreements occupy an important place in Costa Rican family law, though in practice they have been used less frequently than the supplementary legal regime of community property. Their primary function is to allow future spouses — or spouses during the marriage — to organize in advance the patrimonial regime that will govern their relationship. In essence, they constitute a family contract of predominantly economic content, through which the parties may define which assets shall be their own, how certain assets will be administered, what will become of future assets, and how property disputes will be avoided in the event of a eventual separation, divorce, marriage annulment, or liquidation of community property.

The Family Code expressly regulates this institution within the chapter on the family property regime. Article 37 provides that marriage agreements may be executed before the marriage or during its existence, and that they encompass both present and future assets. It further imposes two essential formal requirements: that they be recorded in a public deed and that they be registered with the Public Registry. Through Resolution No. 13920 of June 9, 2023, the Constitutional Chamber recognized the right of persons in a de facto union — including same-sex couples — to execute and register marriage agreements, thereby extending this institution beyond marriage in the strict legal sense.

In Costa Rican legal doctrine, prenuptial or marriage agreements have been understood as a bilateral legal transaction of a contractual nature, entered into in anticipation of marriage and intended to regulate the matrimonial property regime. Gerardo Trejos Salas defines them as an instrument grounded in freedom of contract, yet subject to the general limitations of civil and family law. Doctrine further identifies their essential elements as: their contractual nature, their connection to marriage, their patrimonial content, and the requirement of a public deed.

I. Legal Nature and Function of Marriage Agreements

Legal Nature and Patrimonial Function

Marriage agreements should not be understood as ordinary civil contracts. Although they rest on a contractual foundation, they fall within the domain of Family Law and are therefore subject to special limitations arising from the protection of the family, equality between spouses, good faith, family public order, and inalienable rights. Their typical purpose is patrimonial: to regulate the ownership, administration, disposition, and eventual liquidation of the spouses’ present and future assets.

Costa Rican doctrine explains that marriage agreements are contracts entered into on the occasion of marriage, intended to organize its patrimonial dimension, particularly between the spouses. It is also accepted that, exceptionally, they may include atypical family-related content, provided it does not contravene mandatory legal rules.

Supplementary Property Regime in Costa Rica

In Costa Rica, the supplementary legal regime is not one of immediate community of property. The Second Chamber has consistently held that during marriage there exists patrimonial independence: each spouse retains ownership, administration, and free disposition of his or her assets. The right to community property arises only in a deferred manner — upon dissolution, nullity, judicial separation, or the execution of post-marital agreements. In Judgment No. 01121-2012, the Second Chamber recalled that the governing principle during married life is the complete independence of each spouse’s assets, in accordance with Article 40 of the Family Code. That said, this principle has been qualified by the Second Chamber in cases involving de facto unions and prolonged cohabitation, and therefore cannot be regarded as the sole interpretation of Article 40.

Along the same lines, the Second Chamber, in Vote No. 2009-000902, explained that the Costa Rican legal regime constitutes a system of deferred participation in community property: it operates as a separation of assets during the marriage, but is liquidated as a community upon termination of the regime.

II. When Agreements May Be Executed and Their Formal Requirements

Timing of Marriage Agreements

Marriage agreements may be executed at two stages: before the marriage or during its existence. If executed before marriage, their effectiveness is naturally conditioned upon the marriage taking place. If executed after the marriage has been celebrated, they may modify the existing property regime and, additionally, produce relevant consequences with respect to the community property already accumulated up to that point.

Formal Requirements for Validity

Article 37 of the Family Code requires a public deed and registration as conditions of validity. A private document signed by the parties is therefore insufficient, as is a mere verbal agreement. The intervention of a notary public is mandatory, and the corresponding registry formalities must be fulfilled.

Modification and Effects on Third Parties

Article 39 permits modification of the agreements after the marriage. However, when minors are involved, judicial authorization is required. Furthermore, any modification does not affect third parties until an extract of the deed has been published in the official gazette and registered with the Public Registry. This rule is especially relevant for the protection of creditors, children, and other parties who may be affected by changes in the allocation of assets between spouses.

Legal Capacity to Execute Agreements

It should be noted that Article 38 of the Family Code was rendered without applicable content as a result of the reform to Article 14 of the Family Code introduced by Law No. 9570 of 2018, which prohibited the marriage of minors in Costa Rica. With the elimination of that legal possibility, the factual premise that Article 38 addressed — marriage agreements involving minors — also ceased to exist. Under current law, the operative rule is that marriage agreements must be executed by persons with full marital and contractual capacity.

III. Effects on Assets Acquired During Cohabitation or Marriage

Property Regime in the Absence of an Agreement

The most significant aspect of a marriage agreement concerns its effect on assets. In the absence of such an agreement, Article 40 of the Family Code applies: each spouse is the owner and may freely dispose of the assets he or she held before marriage, the assets acquired during the marriage, and the proceeds of both. This freedom, however, operates during the marriage; upon termination of the regime, the right to participate in the community property arises.

Participation in Marital Property (Community Property)

Article 41 of the Family Code provides that, upon dissolution or nullity of the marriage, declaration of legal separation, or execution of a post-marital agreement, each spouse acquires the right to participate in one-half of the net value of the other’s marital property. It further provides that such assets become automatically encumbered upon liquidation.

Assets Excluded from Community Property

The same provision enumerates which assets are excluded from community property: those brought into the marriage or acquired during it by gratuitous title or random cause; those purchased with personal funds expressly designated for that purpose in the marriage agreement; those whose cause or title of acquisition preceded the marriage; those subrogated to other personal assets; and those acquired during the period of de facto separation.

Judicial Application

The Second Chamber has consistently applied this framework. In Judgment No. 00988-2008, the Chamber reproduced the exceptions to community property, expressly including assets purchased with funds designated for that purpose in the marriage agreement.

Scope of Patrimonial Clauses

Accordingly, through marriage agreements the parties may validly stipulate rules such as: that certain present assets shall retain their personal character; that certain future assets shall not be subject to a future community property liquidation; that the proceeds from the sale of personal assets shall preserve that character; that shares, quotas, or business interests shall belong exclusively to one spouse; or that improvements made to certain assets shall receive specific treatment. However, such clauses must be clear, proportionate, lawful, and compatible with family public order.

De Facto Unions

With respect to cohabitation in a de facto union, recent constitutional interpretation broadens the utility of this institution. If a de facto union produces property effects comparable to those of marriage once formally recognized, it is reasonable for cohabiting partners to organize their property relations in advance, provided the formal requirements of public deed, registration, and respect for non-waivable rights are met. Resolution No. 13920-2023 of the Constitutional Chamber expressly confirmed this possibility for de facto unions, including those formed by same-sex couples.

IV. Marriage Agreements Executed After the Marriage

Legal Effects After Marriage

When marriage agreements are executed after the wedding, their effects are more complex, because they not only govern future relations but may also trigger the liquidation of community property rights accrued up to that point. Article 41 expressly identifies the execution of a post-marital agreement as one of the events that gives each spouse the right to participate in one-half of the net value of the other’s marital property.

Practical Implications

This means that a married couple who did not execute a marriage agreement prior to the wedding may do so afterward, but must take into account that the supplementary legal regime may have generated community expectations up to the moment of the change. For this reason, in notarial and judicial practice, a post-marital agreement requires particular care: it must inventory the assets, clarify which are personal and which may be community property, address whether there is a waiver or liquidation of available patrimonial rights, and determine whether third parties or minors may be affected.

Applicable Judicial Procedure

Under the Family Procedural Code, any dispute concerning the nullity, validity, liquidation, enforcement, or patrimonial effects of a marriage agreement must be processed according to the nature of the claim. Article 212 classifies family proceedings into family resolutions, precautionary protection, unilateral petitions, special resolutions, and enforcement of judicial decisions. Article 213 permits claims without a specifically prescribed procedure to be governed by whatever process the judicial authority deems most appropriate for a timely resolution. Additionally, Article 70 of the Family Procedural Code governs agreements between parties in family proceedings and requires the judge to verify that they do not infringe upon non-waivable rights before granting approval — a provision that reinforces the limits on contractual freedom in matters of inalienable rights.

V. Grounds for Nullity of a Prenuptial Agreement

Grounds for Nullity

A prenuptial or marriage agreement may be challenged or annulled when it fails to satisfy essential validity requirements or when its content violates mandatory legal rules. The most apparent ground is the absence of a public deed or registration, since Article 37 requires both as conditions of validity.

Defects of Consent

Nullity may also be claimed on grounds of defective consent, such as error, duress, intimidation, fraud, simulation, or misrepresentation. Article 293 of the Family Procedural Code, which addresses opposition to divorce agreements, judicial separation, or termination of a de facto union by mutual consent, serves as a guiding framework by admitting opposition when defects in consent or misrepresentation are alleged prior to judicial approval.

Protection of Third Parties and Minors

Likewise, clauses designed to defraud third parties, conceal assets, harm creditors, circumvent vested marital rights, eliminate the rights of minors, or impose conditions incompatible with equality between spouses may be declared null or ineffective. Article 39 reinforces this protection by providing that modifications do not prejudice third parties until the corresponding publication and registration have taken place.

Relevant Case Law

The Second Chamber has adjudicated proceedings in which the absolute nullity of marriage agreements was sought alongside claims for early liquidation of community property. Judgment No. 01340-2010, for example, involves an action requesting the absolute nullity of a marriage agreement, its cancellation from the registry, and the early liquidation of community property.

Early Liquidation of Community Property

The early liquidation of community property provided for in Article 41 of the Family Code should also be considered in cases where the court finds, in an unambiguous manner, that the interests of one spouse are at risk due to mismanagement by the other or through acts that threaten to circumvent those interests. Furthermore, Article 4 of the Family Procedural Code, concerning the principle of effective judicial protection and precautionary measures, offers additional tools to safeguard threatened community property without requiring the dissolution of the regime.

VI. May Alimony Between Spouses Be Included in Marriage Agreements?

Regulation of Economic Obligations

The question of alimony between spouses calls for a nuanced answer. A marriage agreement may include references to assistance obligations, family financial contributions, or economic support arrangements between spouses, provided they are lawful, voluntary, and do not constitute an advance waiver of inalienable rights. However, it is not permissible to agree in advance to an absolute and irrevocable waiver of future alimony between spouses.

Legal Basis of Alimony Obligations

Article 57 of the Family Code establishes the reciprocal duty of assistance between spouses, which includes proportionally bearing the needs and expenses of the family in accordance with their respective abilities, resources, and income. That same provision recognizes the economic value of unpaid domestic and care work as a contribution to the maintenance of the household. The general legal basis of the maintenance obligation between spouses is Article 164 of the Family Code, which governs the right to maintenance within the family sphere.

Non-Waivable Nature of Alimony

Article 167 of the Family Code expressly provides that the right to maintenance may not be waived or transferred in any form, and that the maintenance obligation is imprescriptible, strictly personal, and non-offsettable.

Judicial Criteria

The jurisprudence of the Second Chamber confirms this limit. In Judgment No. 01502-2010, the Chamber approved a property agreement but denied approval of the mutual waiver of alimony between them.

Post-Marital Alimony

Moreover, in Judgment No. 00500-2014, the Second Chamber explained that the duty of assistance may subsist even after dissolution of the marriage.

Contractual Limits

Accordingly, a prenuptial or marriage agreement may regulate contributions, but may not eliminate the right to claim maintenance in the future.

Procedural Aspects

From a procedural standpoint, the Family Procedural Code confirms the dynamic nature of maintenance obligations, allowing modification and enforcement through judicial mechanisms.

Conclusion on Prenuptial Agreements in Costa Rica

Prenuptial and marriage agreements in Costa Rica constitute a valid, useful, and legally significant tool for organizing the assets of spouses or cohabiting partners. Their scope is not unlimited and must respect family public order and inalienable rights.

With respect to alimony, the conclusion is clear: agreements may regulate economic contributions, but cannot exclude the right to claim maintenance.

Any prenuptial agreement must be drafted with precision and in full compliance with Costa Rican law.

Lic. Arcelio Hernández Mussio
Derecho y Familia Abogados
6088 8817