Can a marriage contract make arrangements in favor of third parties other than child support?

Can a marriage contract make arrangements in favor of third parties other than child support?

Petar Topurov[1]

I. Introduction

The relevant legal framework for the matter under discussion is contained in the Family Code[2] and in the Law on Obligations and Contracts[3]. First of all, it should be noted that Art. 22, para. 1, ex. 1 of the ZZD in principle permits the negotiation in favor of third parties for the contract. At the same time, Art. 37 of the Civil Code gives the opportunity to those entering into marriage (or already entered into one) to settle their property relations with each other with a marriage contract, as in Art. 38 of the Civil Code lists, for example, the possible content of the marriage contract with the clarification in para. 1, ex. 1 that it may contain stipulations only regarding property relations between the parties[4].

In the middle of this normative "fog" is the question that is the subject of the present discussion - can a marriage contract make arrangements for the benefit of third parties, other than those regarding child support? To answer this question, the following sub-questions will need to be examined in detail:

1. Does the existing legal framework allow or prohibit the presence of other stipulations in the marriage contract that affect third parties?
2. If the answer is positive - what could be the provisions in the marriage contract that affect third parties?

 II. Is it permissible to have stipulations in the marriage contract that affect third parties?

1. From the point of view of the existing legal framework

1.1. Initially, the Family Code provides that the marriage contract contains only arrangements regarding property relations between the parties to it (those intending to marry or already married). However, in Art. 38, para. 1 of the Civil Code, there is an exemplary scope of the stipulations that can be contained in the marriage contract and which by their content could also affect third parties to the contract. These are no only the children from the marriage, regarding the maintenance of which the spouses can reach an agreement in the marriage contract[5], but also everyone third parties, in relation to which would reflect the property relations settled in the marriage contract. Thus in Art. 38, para. 1, item 3 provides that they can be settled with a marriage contract the ways of management and disposal with property, including the family home; in item 4 the participation of the parties in the costs and obligations; and in item 8, that the marriage contract may contain stipulations regarding other property relations, insofar as this does not contradict the provisions of the SC. On the other hand, when regulating the effect of the marriage contract in Art. 40, para. 2 of the SC provides that with it no rights may be affected, acquired from third parties before its conclusion.

2. Opinions in legal theory

2.1. The possibility of a marriage contract containing stipulations in favor of third parties is supported in legal theory by the statutory exception to the strict principle of relativity of the obligation relationship[6] – the possibility to negotiate only for the benefit of third parties for the contract (Article 22 of the LL.P.)[7].

2.2. However, there is also the opinion that the marriage contract cannot regulate property relations between the spouses and third parties, the only exception to this rule being the possibility expressly provided in the law to include stipulations regarding the maintenance of the children of the marriage[8].

3. Conclusions

3.1. It should be supported the position that the existing legal framework provides for the possibility to make arrangements in favor of third parties with a marriage contract, other than those regarding child maintenance.

Indeed, in Art. 38, para. 1, it is expressly stated that the marriage contract contains stipulations only regarding property relations between the parties. However, in the same provision in item 7, it is provided that the property relations between the parties include the issues regarding the maintenance of the children of the marriage, which in turn are obligations of the spouses to third parties for the contract. However, to the extent that each of the spouses owes care to the family (Article 14 of the Civil Code), there is an interest in settling with the marriage contract the issues regarding the maintenance of the children of the marriage[9]. Immediately after the provision of this express possibility in item 8 of Art. 38 of the Civil Code provides that the marriage contract may contain stipulations regarding "other property relations", as the limit set by the legislator is the contradiction with the provisions of the SC. On the other hand, Art. 40, para. 2 of the SC gives protection to the third parties, acquired rights before the conclusion of the marriage contract. By argument a contrario, the parties to the marriage contract could reach stipulations that affect the rights of third parties, acquired after its conclusion. At the same time, Art. 22 of the Labor Code provides for an exception to the principle of relativity of the contractual relationship in favor to third parties for the contract.

Hence, it should be assumed that Art. 38 of the SC indicates only an example content of the marriage contract, such as the provision interpreted in connection with Art. 40, para. 2 of the SC and Article 22 of the PPE allows the latter to contain stipulations in favor to third parties.

3.2. One should also take into account the manner in which the question thus posed, namely whether "with" the marriage contract, not "in" him, arrangements can be made for the benefit of third parties.

Hence, even if we assume that initially the legal system allows the marriage contract to contain only stipulations regarding property relations between the parties, it is not impossible for a written agreement between (future) spouses be entitled "Marriage Agreement", be concluded in the prescribed in Art. 39, para. 1 of the SC, but to objectify in its content both arrangements falling within the scope of Art. 38 of the SC, as well  other arrangements that go beyond this scope, including for the benefit of third parties. In this line of thought, even if the thesis is advocated that the law does not allow "in" the marriage contract to have stipulations in favor of third parties, it should be taken as indisputable that it allows such stipulations to be objectified "with it" , and the same should be capable of producing the legal consequences intended by the parties, insofar as the law does not provide additional requirements for this and insofar as they correspond to the general rules for the validity of contracts.

III. What could be the stipulations in the marriage contract that affect third parties?

Having already given a positive answer to the question whether a marriage contract can contain stipulations for the benefit of third parties, we should ask ourselves what these stipulations could be?

1. Such would be arrangements in the first place can be in favor of other relatives or relatives of the spouses.

1.1.[10] In relation to them, the spouses could be obliged by law to provide the necessary maintenance, but it is also possible that they are persons to whom the given spouse no would have a maintenance obligation under the SC. Persons could also fall into this circle the children of one spouse whose origin is from a person other than the other spouse. Although Art. 38, para. 1, item 8 of the Civil Code provides that the marriage contract may contain stipulations regarding child support from the marriage, based on Art. 22 of the PPE should support the possibility to agree provision of maintenance also to the children of one of the spouses from a previously concluded marriage[11]. In view of the development of social relations, such hypotheses would be more and more encountered. Hence the interest for those getting married or getting married to agree on such alimony. A situation in which a relative of one spouse suffering from a serious illness, with the other agreeing to undertake an obligation to cover part of the cost of medicines or to provide the gratuitous use of his personal belongings precisely with the marriage contract[12].

1.2. At the same time, the legal theory advocates the view that a stipulation on the obligation of alimony regardless of the needs of the claimant or regardless of the capabilities of the alimony debtor would be invalid[13]. Other authors support a different position[14] – that the amount of alimony may not be determined by the recipient's needs and may exceed them many times over. The possibility to arrange alimony regardless of the needs of the receiving spouse should be supported. In such cases, however, the obligation would not have the typical nature of the statutory maintenance obligation under the SC, but of an obligation to provide monthly cash funds to cover certain life needs beyond the means necessary for the existence of the maintenance recipient. From here, it should be possible to arrange a larger allowance for such needs. It is necessary to support the understanding of the possibility of declaring such an arrangement null and void, insofar as it expressly establishes that it does not depend on the capabilities of the provider of maintenance. The opposite position would be contrary to the principle of respect, care and support between family members. However, if the stipulation foresees an obligation for maintenance in the nature of such under Art. 139 of the Civil Code and its obligation without taking into account the capabilities of the debtor and the needs of the recipient of maintenance, such a clause should be considered invalid.

1.3. The parties to the marriage contract could make arrangements in favor of the children of the marriage, which are not related to their maintenance obligation

The support of the opinion adopted in the present text about the principled admissibility of clauses in favor of third parties in the marriage contract also leads to a conclusion about the possibility of the parties to the contract agreeing and different from the one expressly stated in Art. 38 of the Civil Code benefit your children in the marriage contract. Such stipulations could be related to free provision of the use of certain items to one of the spouses or additional funds for certain needs beyond the funds necessary to ensure the necessary living conditions for the development of the child.

2. The parties to the marriage contract may also enter into agreements for the benefit of creditors.

For example, it could be agreed that the spouses agree to be jointly liable for a wider range of obligations[15] from those provided in art. 32 and Art. 36, para. 2 of the SC. However, can it be agreed that one spouse will be jointly and severally liable with the other for all obligations undertaken by him, regardless of whether they are undertaken for the (current) needs of the family or for other personal needs of the spouse? Or would such a provision contradict the principle of equality of rights and obligations of spouses in marriage? If the answer is positive, could such a stipulation also apply to all obligations assumed by the debtor-spouse before the conclusion of the marriage?[16]

With regard to family maintenance obligations and expenses, it is considered hypothetically possible to agree in the marriage contract that the family maintenance expenses and expenses will be borne by only one of the spouses, insofar as it is available economic inequality or special circumstances such as incapacity of one of the spouses[17]. Such a position should be supported. In any case, the reality of such an arrangement should be assessed accordingly the particularities of each specific case and the possibility of the same being real could not be initially denied. The same position should be adopted with regard to the other two issues - regarding the agreement of joint and several liability between spouses and for personal obligations of one spouse, including obligations assumed before the conclusion of the marriage contract. In support of such a conclusion is the possibility that any person enters into another's debt, regardless of the presence or absence of a family-legal relationship between them[18].

IV. Some additional questions

1. Can a third person participate in the marriage contract, expressing his consent to the benefit agreed for him?

Initially, the law determined that the parties to the marriage contract were a man and a woman intending to marry or current spouses. What would be the consequences if the third person objectified his declaration of will that he accepts the stipulation in his favor in the content of the marriage contract itself? Will the latter become a party to the contract? It should not be denied the possibility of the third beneficiary to declare that he accepts the agreement made by the parties in his favor, which in turn would make it irrevocable. By "participating" in the marriage contract, the third person will not become a party to the contract, since he is participating only in his capacity as a beneficiary[19].This conclusion is also supported by the fact that the parties to the marriage contract are a man and a woman who intend to marry or have already entered into one.

2. Problems related to the (non)publicity of the content of the marriage contract

For presence or absence of a selected contractual regime of property relations between the spouses, information can be obtained from the publicly available register of property relations between spouses, which is administered by the Registration Agency. If a disposition of real property rights over real estate was made with the contract, the latter would be subject to entry in the Property Register to the Registration Agency. In this way, the interested parties could practically inform themselves about the entire content of the marriage contract, obtaining an uncertified copy of it. However, if the contract is not entered in the Property Register, the third parties-beneficiaries could learn about the stipulation in their favor  from one of the parties to the contract, and especially from that party, which is the negotiator under Art. 22 of the ZZD.

V. Conclusion

As a result of the above, it should be considered permissible to make stipulations in favor of third parties with the marriage contract, other than those regarding child support, including stipulations in favor of other relatives of the parties to the contract, their creditors or other stipulations in favor of the children of the marriage beyond their support. In these cases, the beneficiary could declare the acceptance of the stipulation in his favor and in the marriage contract itself, which, however, does not make him a party to the concluded marriage contract.

Petar TOPUROV, attorney-at-law, assistant professor at the State and Law Institute at the BAS

[1] Assistant in the "Civil Law Sciences" section at the State and Law Institute at the BAS, lawyer.

[2] Pron. DV. No. 47 of June 23, 2009, in force since October 1, 2009, final change and add. DV. No. 24 of March 22, 2019. Henceforth SC.

[3][3] Announcement, SG No. 275 of 22.11.1950, in force since 1.01.1951, final amend., no. 96 of 1.12.2017, in force from 1.01.2018, supplement, no. 42 of 22.05.2018. Henceforth, the Personal Data Protection Act.

[4] And so Markov, M. Family and inheritance law. Sibi. 6th edition. 2014, p. 69.

[5] In other legal systems, stipulations in favor of children in a prenuptial agreement are taken as stipulations in favor of "quasi-countries" under the contract. See Samuels, G. Contracts for the benefit of third parties. Western Australian law review. 1968/3, p. 386

[6] More on the principle of relativity of bond relation –  Topurov, P.. On the principle of relativity of bond relation. Scientific readings on the topic "Legal norms and legal principles" - collection of reports, University Publishing House "St. Kliment Ohridski", 2017

[7] Topuzov, D. Nullity of the marriage contract. Seela. 2016, p. 57. The conclusions are also supported by A. Staneva. The marriage contract. Second Amended and Revised Edition. Seela. 2011, p. 66, as it should be mentioned that the cited author also accepts as permissible the opposite – agreeing on separate responsibility for the obligations undertaken to meet the needs of the family and are related to the emergence of common property. Such a position is supported by the argument that Art. 32, para. 2 of the SC regulates the joint liability of spouses within the legal regime of community. From his side Markov, M. Quote op.cit., p. 69. accepts that it is possible to exclude joint and several liability for obligations by stipulating in the contract that only one spouse is responsible for covering the expenses of the family, and the other for the care of the children and the household.

[8] Mateeva, E. Family law Family law of the Republic of Bulgaria. S.: "Chernorizets Hrabar" VSU, 2010, p. 166.

[9] Mateeva, E. Quote ref., p. 167 accepts that the inclusion of maintenance issues as a possible content of the marriage contract stems from the fact that such an agreement is "a natural part of the 'package' of agreements concerning property relations between the spouses".

[10] Topuzov, D. Cit. same p. 57. So and Staneva, A. Quote op. cit., p. 49, although the opinion is also maintained that obligations of a personal nature to other relatives of the spouses can be accepted as legally irrelevant.

[11] The same opinion is supported by Markov, M. Quote ibid., p. 69.

[12] The possibility of agreeing a benefit for close relatives with a contract between the spouses was also adopted by tartufari, L. God contracts a favour di terzi D. Tedeschi e figlio. Verona. 1889, 355. A similar position was adopted by Angeloni, F. Del contratto a favore di terzi. Art. 1411-1413. Zanichelli. Bologna. 2004, p. 341

[13] Topuzov, D. Quote same p. 70

[14] Dimitrova, G. Content of the marriage contract according to the bill for a new Family Code. Available on trudipravo.bg. Last accessed 10/23/20. The possibility of agreeing with a marriage contract various prerequisites for the right to alimony under Art. 139 of the Civil Code and the method of determining its amount is also supported by Mateeva, E. Quote ibid., p. 173

[15] Topuzov, D. Quote op. cit., p. 58 Likewise Staneva, A. Quote ibid., p. 66.

[16] Staneva, A. Quote op. cit., p. 39, in principle denies the possibility of providing for the reverse action in the marriage contract before the conclusion of the marriage.

[17] Topuzov, D. Quote ibid., p. 112.

[18] For the nature of the contract for entry into debt as a contract in favor of a third party, see Koev, K. Substitution in debt under Art. 102, para. 1 of the ZZD. Sibi. 2016, pp. 92-96

[19] Interpretive decision No. 30 of 17.VI.1981, OSGK, reporter Hristo Studenchev