A BSM settlement agreement before the divorce: A brilliant move or an absolutely invalid gamble?

• Conflict with § 149(1) of the Slovak Civil Code: Only property whose community regime has already ceased can be settled. One cannot validly settle something that still legally exists and whose pool of assets may change at any time up to the day the divorce judgment becomes final.
• Circumvention of the law: The list of agreements available during the marriage under § 143a of the Slovak Civil Code (narrowing, extension, reserving the creation of the BSM to the date the marriage ends) is exhaustive. Anything else that tries to stand in for a prenuptial or "pre-divorce" contract circumvents the mandatory character of the BSM regime.
• Indeterminacy of the subject matter: Since the final extent of the assets and debts is known only at the precise moment the marriage ends, a contract concluded weeks or months in advance operates with an indeterminate subject matter. And indeterminacy renders a legal act absolutely invalid.

CAMP B: Arguments in favour of freedom of contract.

Despite the strict judgments, part of legal doctrine and the bar legitimately argues as follows:

• An obligation to contract, not to settle: With a contract for a future contract, no premature settlement of the property takes place. The spouses merely create an obligation to conclude a BSM settlement agreement in the future. This therefore does not contradict the wording that the settlement occurs only after the divorce.
• The statute recognises partial settlement: The argument that the pool of BSM assets is not known in advance does not hold, because the Slovak Civil Code itself, in § 149(5), expressly permits the property to be settled only in part. The remainder is resolved later (by a new agreement or a judicial settlement), or the statutory 3-year irrebuttable presumption takes over.
• The emergency brake (rebus sic stantibus): If the property situation were to change dramatically between the signing of the future contract and the divorce, the statute protects the spouses through § 50a(3) of the Slovak Civil Code: the obligation is extinguished if circumstances have changed to such an extent that performance cannot fairly be demanded.

What is the way out?

Although the argument for freedom of contract is pragmatic, the prevailing legal view of the Slovak courts is currently strictly dismissive. Relying on a contract for a future BSM settlement agreement concluded before the divorce is, in 2026, a gamble. If one of the spouses decides after the divorce not to honour the agreement, the court will very likely confirm its absolute invalidity.

So what do we recommend to clients?

If you are able to reach agreement during the marriage, do not draw up uncertain contracts for a future BSM settlement agreement. Instead, use the legitimate institution of narrowing the scope of the BSM by notarial deed in respect of specific assets while still married. Alternatively, have the text of the BSM settlement agreement negotiated and ready in draft, and sign it the very day after the divorce judgment becomes final.

Going through a divorce and want to be sure your property agreement will be legally sound?

Do not take risks with invalid contracts. We will help you structure your property settlement safely, tactically, and in line with the latest case law of the Supreme Court of the Slovak Republic.

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