Prenuptial agreement: what to look out for
With a marriage contract, the legal consequences of a divorce can be excluded or adapted to the personal situation. In this article you will find out who a marriage contract is worthwhile for and what exactly can be regulated in it.
Why enter into a prenuptial agreement?
Every third marriage in Germany ends in divorce, but only every tenth couple regulates post-marital affairs with a marriage contract. In most cases, this is due to the fact that the conclusion of a marriage contract is considered unromantic and mutual trust is considered an exclusion criterion for such a sober act. And if the partners always agree and go into marriage with roughly the same financial prerequisites, a marriage contract can be dispensed with.
A marriage contract is particularly interesting when there are major differences in the personal situation between the two partners. This can relate to financial matters such as income, assets or debts, as well as other areas such as different nationalities.
Even those who do not live the “classic” family model of the so-called housewife marriage, in which one partner works and the other is responsible for the household, can benefit from a marriage contract. Because the legal regulations after a divorce are designed for this model and are therefore often no longer up to date.
A marriage contract can thus create a fair arrangement for both partners and prevent possible disputes after the divorce. Through prior, clear agreements, divorce proceedings can often be significantly accelerated and the costs of the divorce can be reduced.
What is regulated in the marriage contract?
A marriage contract serves to regulate everything that is related to the marriage, for example individual property questions of the two spouses. These regulations can affect both the time during marriage and living together, as well as the time after a divorce.
It is rather unusual for spouses to record agreements for their joint marriage in a marriage contract. Most married couples assume that they will be able to amicably resolve issues relating to the marriage in an intact marriage.
Typically, the marriage contract contains provisions on the topics of spousal maintenance, equalization of accrued gains, equalization of pensions, inheritance law, right of access and household effects. However, rights of access and the division of household effects usually only become relevant when a separation is imminent or has already taken place. These points are therefore often only added later.
spousal maintenance
In the event of a divorce, the spouse with the lower income is entitled to spousal maintenance . This is usually 3/7 of the difference in income between the spouses. This legal regulation can be excluded by a marriage contract, for example. However, this is only permissible in court if the waiving spouse does not suffer a disproportionate disadvantage from the regulation. However, other adjustments to spousal maintenance are also possible:
- A spousal maintenance quota that deviates from the 3/7 rule can be specified in the marriage contract.
- A maximum amount of maintenance to be paid may be set. This is particularly useful if one of the spouses has an above-average income.
- It is possible to limit the duration of alimony payments to a specific time. For example, a regulation could be such that the number of years in which maintenance is paid corresponds to the years of marriage.
- It can be regulated which income should be used for the calculation of the maintenance claim and which should not be taken into account.
- The receipt of spousal maintenance can be linked to conditions in the marriage contract, for example the existence of joint children. Conversely, exclusion criteria can also be defined.
Note: The payment of alimony cannot be excluded in the marriage contract.
equalization of gains
With the marriage, the partners usually enter into the marital property regime of the so-called community of gains . This means that in the event of a divorce, assets acquired during the marriage, i.e. the gain, are divided equally between the spouses, although each partner manages their own assets during the marriage. This equalization of accrued gains can be excluded by a marriage contract. This is particularly useful if one of the two partners is self-employed. In the case of a half division, it could happen that the self-employed partner would have to sell working capital in order to be able to pay off the other partner. In addition to a complete exclusion, modifications to the equalization of accrued gains are also possible:
- The amount to be settled can be limited to a certain amount.
- Certain assets may be excluded from the equalization of gains.
- It is possible to agree on a quota that deviates from half-sharing, so that one of the partners only receives a quarter of the profit, for example.
- The implementation of the equalization of gains can be linked to certain conditions, for example that the marriage must be of a certain minimum duration.
- The spouses can agree that the compensation amount can be paid in installments if one of the partners is unable to pay the compensation amount in one go.
Note: Exclusion or modification of the equalization of accrued gains in the marriage contract are only permissible in court if neither partner suffers a disproportionate disadvantage as a result.
In order to prevent later discrepancies, it may be advisable to record the assets existing before the marriage in writing in the marriage contract. In this way, the initial situation is clear for both partners and the gain can later be reliably determined.
pension equalization
Apart from a few exceptional cases, the pension rights adjustment is always carried out in the course of the divorce proceedings. This is intended to ensure that both spouses receive an equivalent pension. If the spouses do not want this, for example because they both work and therefore have sufficient “pensions” individually, they can exclude the pension equalization in the marriage contract. Such an exclusion can not only significantly speed up any divorce proceedings, but also make them significantly cheaper.
An exclusion can also make sense if both partners work, but one is self-employed. In the case of pension equalization, the employed partner would have to transfer a disproportionate number of pension entitlements to the self-employed. The same applies if one partner is employed and the other is studying most of the time.
In addition to simple exclusion, adjustments to the pension equalization are also possible through the marriage contract:
- If a pension equalization is waived, it can be stipulated that certain assets are transferred to one of the partners.
- Conditions can be specified, if they occur, the exclusion of the pension equalization loses its validity. Conversely, the exclusion can be linked to the fulfillment of a condition.
- An alternative equalization rate can be determined, whereby the pension entitlements are no longer divided equally.
Note: Alternative regulations in connection with the equalization of pensions are always subject to an examination of their effectiveness by the competent family court, regardless of what was agreed in the marriage contract.
Inheritance Agreements
The statutory portion of the inheritance that spouses can claim against each other is normally one quarter of the total inheritance if the deceased spouse had children. If there are no children, the rate is even 50 percent. If the spouses live in a community of gains, the rate increases by an additional quarter. In the event of death, the spouse is entitled to a large part of the inheritance according to statutory inheritance law.
If the partners do not wish to be treated in this way, they should make appropriate provisions under inheritance law in the marriage contract. The partners can, for example, waive the right of inheritance, record a change in the inheritance quota or attach certain conditions to the right of inheritance.
In addition to these main points, a marriage contract can also serve to regulate in principle which law should apply in the event of a divorce. This is particularly relevant for couples with different nationalities or German spouses living abroad.
Provisions relating to pre-marital children of one of the spouses can also be part of a marriage contract, for example if it is determined whether the child is to receive maintenance from the non-biological parent after a divorce or whether he or she is granted an inheritance right.
When is a marriage contract made?
In principle, a marriage contract can be concluded at any time, i.e. both before and during a marriage. Even if a separation is already imminent, a contract can still be concluded, which is then usually referred to as an agreement on the consequences of divorce.
If the spouses agree, adjustments to the agreements can be made at any time, even several times. This is particularly useful if the living conditions of the spouses have changed fundamentally since the marriage contract was signed, for example one of the partners has become self-employed or a child has been born. In order to really offer both partners fair conditions, a marriage contract should always correspond to the current circumstances within the marriage.
How is a marriage contract concluded?
Since a marriage contract can have very far-reaching economic consequences, the legislator considers it necessary for both partners to receive impartial legal advice. In order to guarantee this, a notarial certification is always necessary for the conclusion of a legally valid marriage contract. Simple agreements concluded between the spouses and recorded informally in writing are not valid in court. Note: Agreements are only legally effective with regard to rights of access, household effects and the use of the marital home without notarization by a notary.
Marriage contracts should also always be drawn up individually. Templates rarely make sense, since personal characteristics within the marriage cannot be addressed in this way. It is particularly advantageous to have the marriage contract drawn up by a specialist family law attorney. On the basis of empirical values, he can forecast possible developments in a marriage and take these into account in the marriage contract.
The cost of entering into a prenuptial agreement varies from case to case and depends primarily on how much time the divorce lawyer or notary needs to spend preparing the prenuptial agreement. In addition, there are costs for the notarial certification.
In order to save costs, it makes sense to choose a specialist lawyer, as they usually do not have to research the legal background and can usually determine individually sensible regulations in a much shorter time. It is also advisable that the spouses inform themselves in advance and agree on what exactly should be part of the marriage contract.
Can a marriage contract be dissolved?
If both partners agree, a marriage contract can also be dissolved again. In addition, a marriage contract can be declared invalid under certain conditions, for example if one of the partners suffers a considerable disadvantage as a result of the agreed regulations and he would be dependent on state benefits, for example. Marriage contracts that were signed under pressure or coercion can also become invalid.