Marriage contract

No one likes to think about the consequences of a possible later divorce before getting married. However, it often makes sense to take precautions for this case in good time. This can be done through a marriage contract. Such a contract can be concluded before or even after the marriage. Through a marriage contract, couples can regulate their affairs at a time when their relationship is intact and there is agreement between them.

Attorney Dr. Christina Schmidt advises you comprehensively on the subject of marriage contracts and informs you about the legal questions that need to be considered.

1. What applies without a marriage contract?
2. When does a marriage contract make sense?
3. What can be regulated by marriage contract?
4. Which regulations are inadmissible in marriage contracts?
5. Legal Advice
6. Alternatives to Marriage Contracts

1. What applies without a marriage contract?

Without a marriage contract, in the case of a Divorce the so-called equalization of accrued gains applies: If a married couple has not agreed otherwise, they live by law in the matrimonial property regime of community of accrued gains. The assets of both spouses thus remain separate; in the event of divorce, however, the partner who achieved a higher increase in assets during the marriage (accrued gain) must pay half of the difference to the other. Questions regarding Maintenanceand pension equalization, the provisions of the German Civil Code (BGB) apply without a marriage contract.

2. When does a marriage contract make sense?

In many cases, the regulations of the BGB lead to a fair result for both spouses. This is especially true for couples with common children: Even today, many women still take on childcare and therefore only work part-time or no longer work at all. The provisions of the German Civil Code largely compensate for the financial disadvantages they must accept as a result. Particularly noteworthy here are the equalization of accrued gains and pension equalization as well as the statutory maintenance claims.

However, there are also marriages in which this classic division of roles is deviated from or in which a marriage contract may make sense for other reasons. Among other things, the following situations should be considered:

• The spouses have no children and are both earners. In this case, usually neither of them is dependent on compensation from the other.
• Both partners are already of advanced age at the time of marriage; their professional development is already complete and no children need to be cared for anymore. In this case, both partners often stand on their own feet financially. Pension and accrued gains equalization are then usually not necessary.
• One spouse is significantly wealthier than the other and does not want to accept major financial losses in the event of a divorce.
• One partner is an entrepreneur. For example, he or she wants to exclude business assets from the equalization of accrued gains in order not to jeopardize the existence of the company.
• The spouses have different nationalities or live abroad. In this case, a marriage contract can be used to determine which country's law should be applied in the event of a divorce.

3. What can be regulated by marriage contract?

In principle, the spouses have quite extensive freedom of design in the marriage contract. They can thereby make arrangements that best correspond to their personal circumstances. The following agreements are conceivable, for example:

• To avoid disputes over the amount of initial assets in the subsequent equalization of accrued gains, this can be precisely quantified and fixed in the marriage contract.
• Instead of community of accrued gains, the so-called separation of propertycan be agreed upon. The assets of both spouses then remain completely separate and no equalization of accrued gains takes place after a divorce. However, this arrangement has disadvantages in the event of the death of a spouse: The survivor receives a smaller share of the inheritance and pays more inheritance tax.
• These tax disadvantages can be avoided by agreeing to a modified community of accrued gains . With this arrangement, for example, the equalization of accrued gains can be largely restricted without such unfavorable taxation as with separation of property applying in the event of inheritance. Certain assets (e.g. real estate, business assets) can also be excluded from the equalization of accrued gains. It can also be agreed that the accrued gain is only partially equalized or limited in amount to a specific sum or equalization quota.
• Instead of community of accrued gains, community of property can be agreed upon. There are then no longer any separate assets, but rather they merge, as it were, into the common assets of the spouses. In the event of divorce, these are divided.
• Through a marriage contract, the pension equalization can also be pension equalization excluded or modified. Sometimes each spouse has already acquired sufficient own pension claims. Or the spouse actually entitled to equalization has built up significantly higher alternative reserves for old age than the spouse obliged to equalize.
• Finally, post-marital maintenance claims can also be post-marital maintenance claims excluded, limited or expanded through a marriage contract. However, waiving separation maintenance for the period between separation and divorce is not possible.

4. Which regulations are inadmissible in marriage contracts?

There are matters that fundamentally may not be regulated by marriage contract. In addition, certain contract clauses may be inadmissible. This can lead to the invalidity of the relevant clause or the entire contract. Among other things, the following regulations are problematic:

• Neither child maintenance nor the custody for a child can be determined in a marriage contract. However, agreements regarding the child's residence and visitation rights are possible.
• A marriage contract can be invalid due to immorality, particularly because the inexperience or dependence of one spouse is exploited and that spouse is unilaterally disadvantaged. To determine this, the contract must always be considered in its entirety.
• The economically weaker spouse cannot completely waive his or her post-marital care maintenance in the marriage contract if he or she takes care of the common children.
• Also for a maintenance recipient who, due to age, illness, etc., is clearly not able to take care of himself or herself, maintenance cannot be completely excluded by contract.
• A contractual exclusion or modification of the pension equalization can also be invalid if one partner is thereby unreasonably disadvantaged. This must be examined on a case-by-case basis.

5. Legal Advice

A marriage contract must be concluded before a notary with both partners present at the same time in order to be valid.

However, it is always advisable to consult a lawyer experienced in family law in advance. Have the document either drafted directly by the lawyer or have the draft created by the partners legally reviewed. Dr. Christina Schmidt discusses your individual situation with you and advises you thoroughly about risks and advantages. Together, a contract is developed that always contains the best regulations for your situation. This avoids errors in the contract that could have serious financial consequences in the event of a later divorce.

Even if you concluded a marriage contract some time ago but now want to adapt it to changed life circumstances, for example, Dr. Schmidt will advise you thoroughly and competently.

6. Alternatives to Marriage Contracts

Couples whose marriage is already broken and who are facing divorce can conclude a divorce settlement agreement instead of a marriage contract. This is a contract in which divorce matters, i.e. the mutual rights and obligations after the divorce (e.g. maintenance, division of assets, etc.) are regulated by mutual agreement. Like the marriage contract, this agreement also requires notarial form. Unlike the marriage contract, however, a divorce settlement agreement is only drafted when the spouses have really already decided to divorce. If you would like to conclude such an agreement to regulate the consequences of a separation, attorney Dr. Christina Schmidt is also at your disposal with advice and assistance.