Before getting married, couples are on cloud nine and often don't even think about a marriage contract. If the marriage fails, it may later turn out to be a mistake.
It seems unromantic to many or even a sign of distrust: to draw up a marriage contract before the wedding. But it makes sense, because with such a document, the couple promises each other, in the event of the marriage's failure, that they will part fairly and amicably, at least in matters of finances and the like.
What should be in a marriage contract, how much does it cost and what else couples should know about it - questions and answers.
What is a prenuptial agreement?
"The spouses have clarity and security and know exactly how they are protected in the worst case," says Martin Thelen of the Federal Chamber of Notaries in Berlin. One option could be, for example, to set a maintenance claim for the spouse caring for the children in a marriage contract - for a longer period of time than the first three years of a child's life provided for by law.
The family lawyer Martin Wahlers from the law firm Dingeldein Rechtsanwälte in the Hessian town of Bickenbach recommends that couples should at best clarify possible disputes in a prenuptial agreement before getting married. If there is no desire to have children and both partners earn money, they could agree not to make any financial claims against the other in the event of a marriage.
When does a prenuptial agreement make sense?
For example, when one has high assets in contrast to the other. “Or if one of the two is an entrepreneur or self-employed,” says Wahlers. After all, anyone who sets up or expands a company or practice during their marriage can be severely affected by the equalization of gains in the event of a divorce.
"This can mean that loans have to be taken out to finance the compensation claim or, in the worst case, that companies or practices have to be sold," explains Thelen. Because then the capital is in the company or in practice.
Thelen recommends agreeing on separation of property or a modified community of gains. If the spouse works in the company or in the practice, this can be taken into account through clearly regulated compensation payments in the marriage contract.
How do you go about making a marriage contract legally binding?
The couple should definitely seek advice from professionals. Ideally, both of you should hire a lawyer or a notary who will sound out the interests of the respective partner. The results of the consultations then flow into the marriage contract. The document, which is always based on individual agreements and for which there are no pre-printed forms, must generally be authenticated by a notary. "Only then is it legally valid," says Wahlers.
What is important in the marriage contract?
The most important are regulations on the following points:
- Compensation of gains: "It is a mistake to believe that the assets of both spouses are mixed with marriage," Thelen clarifies. In the case of the statutory matrimonial property regime of community of accrued gains - the situation without a marriage contract - the assets remain separate and in the event of a divorce there is a settlement. Then the spouse who had a higher financial increase during the marriage pays half of the surplus to the other.
- Maintenance claim: Who owes what amount of separation and post-marital maintenance? The law provides for certain alimony claims, mainly for child care or illness. These claims can be excluded, modified or extended by a marriage contract.
- Pension equalization: "This is about the transfer of pension entitlements," explains Thelen. Without a marriage contract, the pension entitlements acquired during the marriage are divided equally between both spouses in the event of a divorce.
What if a marriage without a prenuptial agreement breaks down?
"Then the legal consequences apply to the equalization of gains, maintenance and pension equalization," says Wahlers. The family court will then decide. "But it is still possible to conclude a marriage contract during the separation and divorce phase," adds Thelen. Such a document is usually called a "separation and divorce agreement". This avoids long and stressful divorce proceedings.
How much does a prenuptial agreement cost?
"It varies and depends on the couple's financial situation and the arrangements made," says Wahlers. Thelen gives an example: Both spouses each have assets of 25,000 euros. They agree on the exclusion of the equalization of accrued gains, maintenance and pension equalization should be carried out in accordance with the statutory provisions. "Such a marriage contract costs around 330 euros net plus expenses and VAT," says Thelen.
The more assets there are, the higher the costs. The notarization fee also includes advice from the notary - regardless of the time required. Anyone who seeks legal advice pays the lawyer's fee in addition to the certification fee at the notary.
Can a prenuptial agreement be changed any number of times?
"If both agree, then yes," says Wahlers. According to Thelen, this may even be necessary under certain circumstances if life circumstances develop differently than expected. Changes to a marriage contract must also be notarized.
(This article was first published on Monday, June 13, 2022.)