There is a lot to organize during a wedding. In many cases it also makes sense – as unromantic as it may sound – to think about what will happen in the event of a divorce at this point in time. Namely: What happens to the (joint) finances? What Happens to a Spouse’s Business? This and much more are things that may need to be regulated in a marriage contract. Some see it completely pragmatically and are convinced of its usefulness. For others, a marriage contract means a lack of trust. The truth is, a prenuptial agreement is nothing to dread. On the contrary: It is a way of regulating certain things fairly. It is therefore worthwhile to deal with it completely neutrally and impartially and to weigh up the advantages and disadvantages for yourself. There is no reason to be afraid of contact with this topic – not even the romance. We have summarized the most important things you should know about prenuptial agreements.
“Therefore, those who bind themselves forever should check whether the heart finds its way to the heart.” This is a wisdom that Schiller shaped and that has never lost its topicality. A marriage contract only regulates what should happen in the event of the dissolution of a civil marriage. So if you don’t get divorced, then the marriage contract doesn’t come into force. But what if there is a divorce? The advantage of a prenuptial agreement is basically that a divorce can be processed faster and less complicated. Because the marriage contract regulates areas where disputes are most likely to arise. A marriage contract can be a disadvantage if one of the two partners does not study the provisions of the contract carefully and is not really clear about what they mean for him. It can also be problematic if certain situations change during the marriage but the marriage contract is not adjusted.
What actually is a marriage contract?
Basically, a marriage and thus also a divorce is legally connected with comprehensive rules and obligations. This means that in Austria there is what is known as a marriage during marriage “separation of property” or in Germany the so-called “community of gain”. According to Austrian matrimonial law, this means that each spouse keeps the assets acquired before and during the marriage.
The so-called “gain” is the property acquired jointly during the marriage. In the event of a divorce, however, this is divided up and thus the principle of the separation of property is broken for this part of the property. To be fair, the assets brought into the marriage or earned remain with the respective spouse in an amicable divorce situation. Joint savings are divided equally between both partners. If you consider that maybe a partner took care of the children and the household and therefore didn’t have the opportunity to build up (more) savings, then that seems to be quite fair. However, the situation is very different if one of the two partners owns a company. If a couple has taken out a loan, then whoever has the borrowed capital at their disposal must assume responsibility for repaying the debt.
By the way: A marriage contract must of course be notarized.
What does a prenuptial agreement do?
Even without a marriage contract, you conclude a contract with your spouse at the civil wedding. The associated rights and obligations therefore apply anyway and even without a contract. Therefore, it is not naive not to have a contract.
However, a marriage contract can make sense if a couple believes that the legal provisions in the event of a divorce are not suitable for them. As a couple, for example, you find that the principle of the separation of property should also apply in the event of a divorce. Legal rules for the couple can also be formulated and specified in more detail.
This can be useful, for example, if one of the two spouses company Has. Without a marriage contract, in the event of a divorce, the shares in the company (as assets) may be divided. If the former spouses no longer get along after marriage, these conflicts can have an impact on the entire company climate. In such extreme cases, it is therefore not uncommon and sensible to consider the “what if” scenario. Finally, it is also conceivable that one partner has to pay out the other because the other does not want to have anything to do with the company. If the company cannot afford it, then the spouse’s livelihood is at stake. Such a settlement can be prevented with a separation of property in the marriage contract, because then everyone remains the sole owner of their assets.
What can be regulated in a marriage contract?
In principle, you can in such a contract related to that assets arrange whatever you want. For example, the division of assets (community of property) or a separation of property can be agreed. You can also record who should get the shared home, who has to pay back a loan, etc. The only important thing is that it must not violate good morals. Regulations that severely disadvantage a partner and/or threaten their existence must not be made. An example of this is the home: if someone is dependent on the apartment or house or there are children, it should not simply be written down that they will then have to move out.
An obligation to father children or an agreement that children should never result from the marriage must also not be made. An agreement on the custody of children is possible, but the court can decide differently in the case of a non-consensual divorce in the interests of the child’s well-being.
Also, in a prenuptial agreement Pension entitlements/pension adjustment (retirement or disability benefits) and maintenance claims (Child, separation and post-marital maintenance) are regulated.
Tip: Be sure to get advice from an expert. Because a marriage contract that puts one spouse at a disadvantage can even be declared void in the event of a divorce.
Is such an agreement really fair?
The word “marriage contract” is wrongly associated with negative connotations in the German-speaking world. Assumptions, such as that women or the financially weaker partner would be disadvantaged with such a contract are (still) widespread. Of course, that doesn’t have to be the case. Because the couple can design the contract as they want and that should best be fair. This does not automatically mean that a partner is disadvantaged.
Most importantly, both of you are honest with each other and agree on what you want to do. Talk openly and honestly about your vision for your life together and any eventualities in your marriage. Each couple should weigh the pros and cons for themselves. There are many individual situations for which a marriage contract makes sense and for which you will definitely find a solution together. If you are thinking about entering into a prenuptial agreement, it is best if you contact a trusted lawyer who is well versed in the subject.
For whom does a prenuptial agreement make sense?
We have a few examples for you for which people it makes particular sense to think about a marriage contract:
- entrepreneurs and the self-employedto protect himself from paying out half of the company shares in the event of a divorce.
- DINKS (double income no kids) can even draft a prenuptial agreement shortly before the divorce to prevent the divorce from lasting forever.
- people in debtbecause it could be that one partner has to finance the other partner because of the equalization of pensions.
- Older people owning real estatebecause the value may have increased so much that you can’t afford to pay out half of it.
- Couples from different countriesshould regulate the equalization of pensions and which law should be applied in the event of a divorce.
A marriage contract can also make sense if both partners or one of them is very wealthy. If both spouses work full-time or want to stay, then you can think about a prenuptial agreement to avoid compensatory payments. But it may just as well be that the spouses want a traditional distribution of roles in family life in the longer term and therefore the duration or amount of maintenance should be limited in the event of a divorce.
If none of these points apply to your situation, then fair divorce judgments can probably be expected even without a marriage contract. But the divorce can possibly last longer and be associated with more conflicts.
Conclusion: Secure contractually, yes or no?
As you can clearly see, there are both pros and cons to a prenup. Any legal professional who deals with the issue of divorce will probably advise you to do this. In the event of a divorce, it will probably be better from a legal point of view.
A couples therapist would probably advise against it. Because on the one hand you promise yourself at the wedding that you want to stay together until the end of your life and on the other hand you have a kind of plan B in your pocket that seems to take this promise a little ad absurdum.
However, if you decide to have a prenuptial agreement, it will probably be easier to complete it before the wedding. Theoretically, however, you can also sign or amend a marriage contract at any time after the wedding, provided that both spouses agree. But: The spouse is not obliged to sign something like this if he doesn’t want to. Therefore, it is certainly best to conclude a marriage contract when you (still) understand each other well.
Tip: Unfortunately, something unforeseen can always happen before a wedding celebration. You don’t want to imagine it, but just think of a serious accident or a serious illness, which is why the wedding has to be cancelled. So that the bridal couple does not face a financial disaster, there is optimal protection with wedding insurance.