When does a prenuptial agreement make sense, when is it immoral? Agreement still possible even before a divorce

When does a marriage contract make sense, when is it immoral?

Agreement still possible even before a divorce

Chamber of Notaries Frankfurt am Main. Young couples in particular are often reluctant to broach the subject of a marriage contract. The fear is too great that the partner could assume a lack of trust. Depending on the individual case, a prenuptial agreement can be very useful, for example to make agreements on matrimonial property regimes in the event of a divorce. This may save the parties concerned a complicated and expensive valuation of assets, especially initial assets. In addition, the partners can make agreements to avoid disputes and unnecessary costs for subsequent proceedings in the event of a marriage breakdown. The prenuptial agreement can be concluded before or during the marriage and even in the event of an impending divorce. This is known as a divorce settlement agreement. It must be notarized by a notary. Otherwise, the marriage contract is not valid.

Individual agreement can avoid lengthy follow-up procedures

Married couples do not have to conclude a marriage contract. If they waive a contract, the statutory matrimonial property regime of community of accrued gains applies. In this case, the spouses have separate assets from the outset. As soon as the marriage ends due to death or divorce, a financial settlement must be made. However, if one or both partners already own assets that are complicated to value before the marriage, such as securities, companies or shareholdings, it may make sense to regulate the handling of these assets with a marriage contract. Such an agreement is often also intended to avoid liquidity problems in the event of a claim to equalization of gains after a divorce: This can occur if one partner already owns a property at the beginning of the marriage that increases significantly in value without conversion or similar measures from the spouses' assets. Without a corresponding agreement, the person concerned could be forced to sell the property if there are no other readily available assets. Contractual agreements on the matrimonial property regime can, under certain circumstances, help to prevent lengthy court proceedings. However, the possibility of financial compensation should be stipulated so that no spouse "goes away empty-handed". A notary can provide information on the possibilities of excluding or modifying the statutory matrimonial property regime.

Marriage contract also makes sense for marriages without large assets

If spouses wish to waive the statutory pension equalization, i.e. the division of pension entitlements acquired during the marriage, in the event of a divorce, a marriage contract is necessary. If the marriage actually ends, the court will review agreements on pension equalization as part of a review of their content and implementation, in particular as to whether the retirement benefits of both spouses are secured. A marriage contract also makes sense if at least one of the partners has already been married once or more. If there are still claims from one of these marriages, the marriage contract helps to sort out the complicated maintenance regulations. A prenuptial agreement can also be advisable for couples who do not have significant assets at the beginning of the marriage. This allows them to regulate other matrimonial issues such as individual provisions relating to divorce. These include, for example, the payment of maintenance or pension entitlements.

Clauses can be immoral

In principle, married couples can design their marriage contract individually. However, there are some important exceptions to note: If the marriage contract excludes future claims for separation or child maintenance, it is illegal. Separation maintenance ensures that the financially disadvantaged partner does not get into financial difficulties in the event of a separation. In addition, a marriage contract can be immoral if one partner was economically or emotionally dependent at the time of signing and the other has exploited this disadvantage. This may be the case if one partner did not understand the contract due to a very low level of education or lack of language skills, would have been expelled from Germany without marriage or if the wife was pregnant and dependent on the husband. The contract is also immoral if one partner has made false statements about their assets or threatened the other if they do not agree. If a clause is illegal or immoral, the entire marriage contract may even be invalid in exceptional cases. Furthermore, a marriage contract is only valid if it is notarized in the presence of both spouses. The notary can also take over the entire legal drafting of the contract.

If you would like advice on this topic from a notary in advance, you can find it on the Internet at https://notar.de/ the right contact person. You can also visit the online consumer portal of the Chamber of Notaries at https://ratgeber-notar.de/.