Questions about the benefits of marriage contract conclusion or its subject matter do not particularly arise. But in the work, I came across various views on the possibility of concluding a marriage contract by a party’s representative.
One of the former spouses appealed the marriage contract concluded several years ago on the grounds of its’ signing not by the spouses, but by their representatives under the notarized Power of Attorney.
In the process of preparing for the trial (on the side of the defendant), I began to study both the vision of practicing notaries and the experience of other countries where a marriage contract is not a “curiosity” like in Ukraine.
It turned out that in practice, those wishing to conclude a marriage contract (couple or persons who filed an application for marriage registration) may still be faced with the refusal of notaries to certify such agreements if they are concluded by representatives. One can meet such a justification: a marriage contract is not a transaction of a property nature, which is inextricably connected with the personality of its participant, and therefore, in accordance with Part 2 of Art. 238 CCU can be concluded only personally. This position can be found among scientists.
If we apply to the experience of foreign countries where marriage contracts are widespread, we will find out that in France and Belgium it is allowed to conclude such agreements by legal or contractual representatives under the Power of Attorney, which contains the terms of the proposed marriage agreement. In Germany, the conclusion of the marriage contract by the representative under Power of Attorney is possible by a person whose legal capacity is limited with the consent of the trustee.
In the Ukrainian law, there is no prohibition to conclude a marriage contract by the representative. However, the application of the principle “everything is permitted that is not prohibited by law” will unlikely be a convincing and sufficient argument for judges or notaries.
The possibility of concluding a marriage contract by the representative under the Power of Attorney can be as follows. According to the Family Code of Ukraine, a marriage contract regulates property relations between the couple, determines their property rights and obligations. A marriage contract cannot regulate the personal relations of the couple, as well as personal relations between them and children. The Civil Code of Ukraine provides that the representative cannot implement a transaction, that in accordance with its content, can only be personally made by the person who he represents. Since the marriage contract governs property rights, and not personal rights, it can be implemented by the representative.
Given this, I am convinced that the couple or future couple, who wants to settle property relations between themselves and for some reason cannot / does not want to contact the notary personally, cannot dispose of this right only because there is no explicit reference in the legislation.