Prenuptial and marital agreement in Serbia (bračni ugovor): who, notary form, contents and cadastre

What a marital agreement is and who concludes it

The property of spouses may be joint or separate (Art. 29 of the Family Act, Porodični zakon, "Sl. glasnik RS", No. 18/2005, 72/2011 - other law, 6/2015 and 109/2025 - other law). If the spouses agree nothing, the statutory regime applies: property acquired through work during the marital community of life is their joint property (Art. 171(1)), while property acquired before the marriage, and property acquired during the marriage by inheritance, gift or division of joint property, is the separate property of the spouse who acquired it (Art. 168).

A marital agreement is the way to change that regime. Spouses or future spouses may regulate their property relations on existing or future property by contract (Art. 188(1)), and Art. 171(2) expressly states that spouses may regulate their property relations differently by a marital agreement.

The law knows no separate category of "prenuptial agreement". A contract concluded before the wedding and one concluded during the marriage are the same legal transaction. The only difference is timing: a contract between future spouses takes effect when the marriage is concluded, while a contract concluded during the marriage takes effect on conclusion and can also cover property acquired up to that point.

The rules on the property relations of spouses apply accordingly to cohabiting partners (Art. 191(2)), so cohabiting partners too can conclude a contract on property relations in the same form. The Notarial Tariff and the Law on the Procedure of Registration in the Cadastre expressly mention such a contract.

Separate and joint property: what the contract changes

To draft the contract sensibly, you first need to know what would belong to whom without it.

Separate property is property a spouse acquired before the marriage and property acquired during the marriage by division of joint property, inheritance, gift or another legal transaction that acquires rights only (Art. 168). Each spouse manages and disposes of it independently (Art. 169). If the value of one spouse's separate property has increased during the marriage, the other spouse has a monetary claim in proportion to their contribution where the increase is insignificant, or a share in that property where the increase is significant (Art. 170).

Joint property is property acquired through work during the marital community of life (Art. 171); property acquired through games of chance and through the use of intellectual property rights in that period is also joint (Art. 172 and 173). The spouses manage and dispose of it jointly and by agreement, and a spouse may not dispose of their share or encumber it by a legal transaction inter vivos (Art. 174). The spouses' shares in joint property are presumed to be equal; a larger share is proved in a court division by reference to income earned, running the household, care for the children and the property, and other circumstances (Art. 180).

A marital agreement can replace that statutory regime. The contract may, for example, provide that each spouse remains the sole owner of everything acquired in their own name, that the shares in joint property are fixed in advance in a different proportion, that a particular property or business remains the separate property of one spouse even though it is being paid off during the marriage, or how loan obligations are shared. The rules on liability for debts should also be understood: each spouse is liable for their own obligations with their separate property and their share of the joint property, while the spouses are jointly and severally liable for obligations incurred to meet the needs of their life together (Art. 186 and 187).

What a marital agreement cannot regulate

The subject matter of a marital agreement is the property relations of the spouses. Several matters remain outside it:

• Inheritance. A contract by which a person leaves their property or part of it to the other party or a third person as inheritance is void (Art. 179 of the Inheritance Act), as are a contract on a future inheritance and a contract on the contents of a will (Art. 180 and 181). Anyone who wants to arrange what happens after death has a will or a lifetime support contract for that.
• Maintenance. Spouses are obliged to maintain each other under the conditions set by law (Art. 28 of the Family Act), and a waiver of the right to maintenance has no legal effect (Art. 8(2)). A clause by which a spouse waives maintenance after divorce in advance is therefore not binding.
• Children. Parental rights and child maintenance are regulated by a parental agreement that the court assesses against the best interests of the child, or by a court decision (Art. 75 to 77 and 272). That is not a property relation between spouses and does not belong in a marital agreement.
• Personal relations. The duties of living together, mutual respect and assistance, freedom to choose an occupation and the joint choice of a place of residence are set by law (Art. 25 to 27) and are not the subject of a property contract.

Clauses on those matters, if included, have no effect and can call into question the interpretation of the rest of the contract. In practice a marital agreement is therefore kept to property.

Form: solemnisation before a notary

A marital agreement is concluded in the form of a notarially confirmed (solemnised) document (Art. 188(2) of the Family Act). This means a lawyer or the parties themselves may draft the contract, but a notary must confirm it: the notary verifies the parties' identity, reads the document to them, establishes that it matches their will and warns them of the content and legal consequences of the transaction, recording all this in a confirmation clause that is a condition of the transaction's validity (Art. 93a and 93b of the Law on Notaries). The notary may also draft the contract, as a notarial deed.

For a marital agreement the law adds a specific warning: the notary must specifically warn the parties that the contract excludes the statutory regime of joint property, and must record a note of this in the confirmation clause (Art. 188(2)). That note shows that the procedure was carried out as the law requires.

A contract not concluded in the prescribed form has no legal effect (Art. 70 of the Law on Obligations). A marital agreement signed without a notary, or with certified signatures only, does not change the statutory regime of joint property. The same applies to later amendments and supplements, which are concluded in the same form (Art. 67(2)).

An agreement on the division of joint property already acquired, and a contract by which one spouse takes over the management and disposal of joint property, are also concluded as solemnised documents (Art. 179(2) and Art. 189(5) of the Family Act), so these three contracts are often drawn up together.

Cadastre entry and effect towards third parties

A marital agreement concerning real estate is entered in the public register of real estate rights (Art. 188(3) of the Family Act). In the real estate cadastre this is done by a note of the existence of a marital agreement or a property division agreement between spouses or cohabiting partners (Art. 15(1)(9) of the Law on the Procedure of Registration in the Real Estate and Infrastructure Cadastre).

The notary delivers the document they drafted or confirmed to the cadastre ex officio, through the e-counter, within 24 hours of drafting or confirmation (Art. 22(1)(2) and Art. 23(4)(1) of the same law). The parties file no separate application, but it is worth checking that the note has been registered.

The entry also has a practical side. As a rule, real estate that one spouse acquires during the marriage is registered in the cadastre as the joint property of both spouses, on the basis of the information about the marriage in the registration document (Art. 7(5)). The exceptions are acquisition by inheritance or by a gratuitous transaction, and the case where the spouses have regulated the acquisition of joint or separate property differently by a marital agreement (Art. 7(7)). A marital agreement is therefore the document on the basis of which a flat bought during the marriage is registered in the name of one spouse only, if that is what was agreed.

When a marital agreement is concluded in practice

A marital agreement is not reserved for large estates. The most common situations in which one is drawn up are:

• one spouse brings real estate into the marriage that is renovated or extended during the marriage, and the parties want to settle in advance that it remains separate property while the other spouse receives a fixed claim or share (instead of proving a contribution under Art. 170);
• one spouse runs a company or a trade, and the parties want to separate business assets and business debts from family property;
• a flat is bought on a mortgage during the marriage but paid for with the money of one spouse or that spouse's parents;
• a second marriage with children from earlier marriages, where the parties want to avoid mixing property, bearing in mind that inheritance is regulated by a will, not by a marital agreement;
• a cohabitation in which the partners want to settle their property relations in advance instead of proving them later in court (Art. 191).

Anyone who does not conclude a marital agreement is not unprotected: the statutory regime of joint property with the presumption of equal shares applies by itself. The contract is a choice for those who want a different rule or more certainty.

Common mistakes

• The contract is signed at home or with certified signatures only, so it has no effect (Art. 188(2) of the Family Act, Art. 70 of the Law on Obligations).
• Clauses on inheritance, waiver of maintenance or children are included; they are void or without effect and create a false sense of security.
• Real estate is described imprecisely, without the data from the cadastre extract, so the note cannot be registered.
• It is forgotten that a contract concluded before the wedding takes effect only when the marriage is concluded, not on signing.
• Later changes are agreed orally or by a plain written annex instead of in the same form before a notary (Art. 67(2) of the Law on Obligations).
• No thought is given to the tax consequences of future transfers between the spouses or to the position of creditors, especially where one spouse runs a business.

As an example of structure, a marital agreement usually contains these parts: the parties and the fact of marriage or the intention to marry, a list of each spouse's separate property, the regime for future property, rules for particular real estate and for loans, management and disposal, liability for obligations, consent to registration of the note in the cadastre, costs and number of copies. This is an outline of the contents, not a ready-made contract text.

Sources

• Family Act (Porodični zakon, "Sl. glasnik RS", No. 18/2005, 72/2011 - other law, 6/2015 and 109/2025 - other law), Art. 8, 25-29, 75-77, 168-174, 178-180, 186-191 and 272
• Law on Notaries (Zakon o javnom beležništvu, "Sl. glasnik RS", No. 31/2011 ... 80/2026), Art. 93, 93a and 93b
• Notarial Tariff (Javnobeležnička tarifa, "Sl. glasnik RS", No. 91/2014 ... 59/2025), Art. 5 and 10 and tariff items 1, 2 and 9
• Law on the Procedure of Registration in the Real Estate and Infrastructure Cadastre ("Sl. glasnik RS", No. 41/2018 ... 92/2023), Art. 7, 15, 22 and 23
• Inheritance Act (Zakon o nasleđivanju, "Sl. glasnik RS", No. 46/95, 101/2003 - Constitutional Court decision and 6/2015), Art. 179-181
• Law on Obligations (Zakon o obligacionim odnosima, "Sl. list SFRJ", No. 29/78 ... "Sl. glasnik RS", No. 18/2020), Art. 67 and 70
• Serbian Chamber of Notaries