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Marriage contract: yes or no? THAT is what every woman should know
When it comes to marriage contracts, there are those who are sure they want one before they even find a partner to marry. There are those who weigh the pros and cons and then make a decision - and then there is me who would prefer not to have anything to do with a prenuptial agreement. The thought of divorce is bloody creepy when you're about to get married.
At the latest when you first go to the registry office, you have to deal with the marriage contract, whether you want to or not. Immediately after the greeting, the brochure on the subject of marriage is handed to you. At first glance, it looks innocent, but if you open it in the middle, you end up with the chapter "Separation and Divorce" and also with the marriage contract.
As uncomfortable as the thought of divorce may be when getting married, you should at least make an informed decision about whether or not the marriage contract would be the right move for you. Closing your eyes and ears doesn't help. Here are the key facts about the marriage contract.
The basics: What does a marriage contract regulate?
A marriage contract usually regulates three areas that can cause problems and disputes after a separation: the property regime and thus also the division of property in the event of a divorce, the compensation of pension claims and any existing maintenance claims.
The property regime in the marriage contract
In terms of matrimonial property regime, the marital union is always considered to be one without a marriage contract Community of profits is looked at. This means that both spouses remain the sole owners of their property acquired before and during the marriage. But: If the marriage breaks up, the family court determines a profit compensation.
The gain is the amount by which the final wealth exceeds the wealth at the time of marriage. The asset gains are shared and the partner with the lower gain is entitled to compensation.
That sounds fair at first. The partner who, for example, took care of the household and children, i.e. who did not generate so much financially, usually enabled the other partner to earn a higher income. So both contributions to the final wealth are taken into account. However, the approach can also get unfair.
For example, if the gain lies in one's own company, one partner would have to pay off the other. If the company does not have such capital reserves, it can jeopardize the livelihood of one partner. In a marriage contract, however, a separation of property can be agreed that prevents such a compensation.
In the Segregation of property Both spouses remain the sole owners of their property - even in the event of a divorce. You can also do the Community of property stipulate in the marriage contract. In this case, all property generated during the marriage becomes common property.
The pension adjustment in the marriage contract
Pension equalization is about retirement or disability benefits, i.e. pension entitlements. Normally, the pension entitlements that both partners have acquired in the marriage are divided - even if only one of the two has acquired any at all. Here, too, spouses can integrate special agreements in a marriage contract that structure the pension equalization differently.
However, there are a few details to note here: A prenuptial agreement that disadvantages one partner can be annulled. So you should definitely seek professional advice.
Spousal support in the marriage contract
In the case of maintenance agreements in the marriage contract, the partners are free to determine the amount of maintenance. A complete renunciation is also possible via a marriage contract, but should be really well considered by the partner who renounces it and the following also applies here: One-sided disadvantage can lead to the marriage contract being classified as immoral. In the case of a complete waiver, another compensation should take place and here, too, it is advisable to seek advice on a case-by-case basis.
Danger! Women need to be extra careful
Maintenance law has changed a lot over time. In the meantime, the Principle of personal responsibility. This means that maintenance claims can be asserted in the first three years of childcare; in the event of an extension, the courts must decide on a case-by-case basis.
Plus there are nowadays too no more standard of living guarantee. In practice, this means that once maintenance has been awarded, it is limited in time or reduced over time.
In addition, maintenance claims can only be made in exceptional cases for the past. If, for example, payments are not made on time, you should consult a lawyer as soon as possible.
As a rule, innovations in maintenance law have put women at a disadvantage, as in most cases they still take care of the household and children.
You can find more information on economic disadvantages after a divorce, especially for women, in the brochure "When love turns into the red" from the Federal Ministry for Family, Seniors, Women and Youth (BMFSFJ).
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Framework conditions for a marriage contract
As a rule, a marriage contract is concluded before the marriage. However, it is also entirely possible to conclude a marriage contract retrospectively. It doesn't matter whether you've been married for two months or for twenty years. The contract then works just like it did before the wedding. It is even possible to retrospectively adapt a prenuptial agreement concluded before the wedding, provided that both partners agree.
According to German law, a marriage contract cannot be concluded without a notary, as it is then deemed to have no formal requirements. In addition, the marriage contract must not unilaterally disadvantage any of the spouses, in which case it is considered immoral and thus also void. The rights of children must also not be curtailed by a marriage contract. This could be the case, for example, when trying to exclude child support payments. In addition, a marriage contract must always be recorded in writing.
That costs a marriage contract
Since the marriage contract has to be concluded before a notary, there are of course costs. It is also possible to call in a lawyer who can review or draft the contract. Since advice and drafting of the contract are included in the notary fees, many save themselves the step to a lawyer. In individual cases, however, notarial certification alone may not be sufficient. The notary also makes a recommendation when it makes sense to consult a lawyer.
The fee rates for notaries are set out in the Court and Notary Fees Act. There is also a notarization fee. Both are based on the business value of the marriage contract, which is made up of the assets of both partners. Debt is also taken into account to a certain extent.
Marriage contract: yes or no?
Ultimately, of course, each couple has to decide for themselves whether a marriage contract makes sense for them or not. However, there are situations when marriage contracts are recommended:
- Both partners are fully employed and have no children, so that in the event of a divorce they do not want any pension or profit compensation.
- At least one area, for example a company or a property, should be excluded from the profit sharing.
- The partners are very wealthy and would like a maximum limit for the compensation claim.
- The partners want a traditional distribution of roles and would therefore like to set the duration of the maintenance obligation and / or a certain amount of maintenance.
There are many other cases in which a prenuptial agreement can make sense. It is best to ask a lawyer or a notary about how you would stand in an individual case after a divorce and then weigh up whether you are willing to take this risk.
You can find more information on the subject of marriage contracts on the website of the Federal Chamber of Notaries.
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