What is joint property?

When you enter a marriage everything you own becomes joint property. It means that you and your spouse now have legal co-ownership over property you bring into the marriage, thereby including all property you acquired before entering the marriage.

If you decide to divorce later on, you and your spouse could be legally obliged to share all of the joint property 50/50 between you - unless you and your spouse can come to another agreement. The prenuptial agreement creates a clearly defined framework which causes stability for both parties.

What is a prenuptial agreement?

If you and your spouse (or future spouse) wishes not to have joint property and thus separation of property in case of divorce or death, you need to make a prenuptial agreement. This is a legal document where you state that all property or parts thereof shall be separate property in case of divorce or death.

The formal prenuptial agreement (whether made before or after the wedding) has to be registered in the property registry (in Danish “Tinglysning”). If the agreement is not registered it will not be valid and therefore has no legal effect. It is therefore not enough for both parties to just sign the document.

If one spouse does not speak Danish it is required that a translation is made so that both parties is fully aware of the content in the prenuptial agreement. When you create your prenuptial agreement through Legal Desk you will receive the document in both Danish and English.

If you need a prenuptial agreement only in Danish you will find it here

Even though a prenuptial agreement is one between spouses it can be made before you get married. We do recommend that you get the prenuptial agreement made before your wedding. It will only be valid after the actual wedding. Please note that it’s not a problem if you change names when you get wed, since you identify yourselves with your CPR-number/passport information when the prenuptial agreement is made. It is therefore of no consequence if one or both of you change your name in connection with the marriage.

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Which kind of separation of property?

There are two types of separation of property: Absolute separation (in Danish “Fuldstændigt særeje”) and Combination of separate property (in Danish “Kombinationssæreje”). These will also be the two types of separation that you can choose from in the online form when you make the prenuptial agreement in English.

If you do not have a prenuptial agreement with separation of property, the Danish inheritance law on joint property will apply so you will have to divide everything in case of divorce or the death of one or both spouses.

However, the law about joint property is waived in favor of a prenuptial agreement with absolute separation of property. This means that the spouses assets will not be divided - neither by divorce nor by death.

Example: 
Jørgen is married to May from Thailand and they have a prenuptial agreement with absolute separation of property. If Jørgen and May get divorced they will each keep their assets/property and nothing will be divided between them. The same will happen if Jørgen should pass away. May will however still inherit after Jørgen according to the inheritance law or if Jørgen has a valid will.

The law about joint property is only partly waived with a prenuptial agreement with combination of separate property. In that case the spouses assets will not be divided by divorce (same as with absolute separation of property). However, upon the death of one spouse, the property of the deceased becomes joint property and the remaining spouse assets is still considered absolute separate property.

Example:
Sofie is married to James from the United States and they have made a prenuptial agreement with combination of separate property. If Sofie and James gets divorced there will not be any separation of their respective property. On the other hand, if James dies his property will become joint property, whereas Sofie’s will not. Sofie thus receives half of James’ property. The other half of his belongings will be bequeathed according to the Danish inheritance law or the last will if such validly exist.

The two examples illustrates the difference between the two types of separation of property. The absolute separation of property maintains the separation of the spouses property regardless of divorce or death, whereas the combination of separate property maintains the separation of property in case of divorce, but meets the surviving spouse, if one of the spouses should die. This being the reason why the combination of separate property is the most popular.

The extent of the separation of property

It is up to you to decide what the prenuptial agreement should include. With this prenuptial agreement you can choose between the following options:

1. Everything is included by the separate property: If you choose this option, everything you and your spouse respectively own becomes absolute separation of property. If you get divorced later on or one of you passes, none of you will receive any property belonging to the other spouse.

2. Everything from before entering the marriage is included by the separate property: If you choose this option, everything you and your spouse respectively purchased before entering the marriage becomes separate property. Everything that you and your spouse acquire after your wedding becomes joint property. The only exception is inheritance or gifts received from others, as this will also be subject to the separation of property even after you get married.

Since the prenuptial agreement generally governs the spouses' assets, it is not necessary to list each of you and your partners personal belongings. Moreover, the prenuptial agreement does not prevent you from sharing things. For example, if you buy a house together, your respective shares of the house will be a part of your personal separate property.

With Legal Desk you have the option to choose that the prenuptial agreement is to be phased out over time or be time limited. For instance, you can decide that the prenuptial agreement must be phased out by 10 % each year until the separate property has been dissolved (after 10 years) or that the separate property should expire on a given date, for instance when you have been married for 20 years.

Prenuptial agreement translated into English

As mentioned above, the prenuptial agreement will automatically be translated into English when you receive it. Below you see examples of the Danish and English version:

Which country's law applies when the spouse is a foreigner?

When you enter into a prenuptial agreement with a foreigner, it is very important that you make sure that Danish law is applicable for your assets. The Danish law will without further discussion be applicable if both of you have been residents in Denmark within the last five years.

However if only one of you is a Danish citizen or has residence in Denmark, and the other spouse is a foreigner, you have a choice whether or not you want the Danish law to be applied for your marriage. You just have to express this in the prenuptial agreement, which of cause is included in the Legal Desk version. If you have doubts about which country’s law is applicable for your marriage you can read more here.

Please take into consideration that this prenuptial agreement only can be used if your marriage is subject to the Danish laws on assets.

How to make the prenuptial agreement valid

After you receive the prenuptial agreement it has to be registret in the property registry. Please note that the prenup only becomes valid when registred - it is not enough that both of you sign the document.

When filling out the form, you can choose whether you want Legal Desk to take care of the registration or whether you want to use our guide for registration of prenuptial agreements.

Regardless of who makes the registry, you have to pay a registration fee of 1.750 DKK to the state.

Note that the registration is only complete when both of you have signed the document with NemID. If you or your spouse don’t have a CPR number and therefor don’t have a NemID to sign the document, you can have Legal Desk sign it for you. Just choose this in the form, and a power of attorney for registry will be sent to you along with the prenuptial agreement. Read more about the power of attorney here. The person without NemID then signs the power of attorney, and hereafter Legal Desk handles the entire process of registration.

Create your prenuptial agreement with English translation here