Marriage settlement

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This article or paragraph presents the situation in Germany and Austria . Help us to describe the situation in other countries.

A marriage contract is a contract under private law between two spouses in which they define individual rules for the marriage , but especially for the eventual divorce , which deviate from the legal regulations.

In marriage contracts, the matrimonial property regime and thus the division of property after the dissolution of the marriage, the compensation of pension claims and regulations on post-marital maintenance are often specified.

Definition of terms

Marriage contracts are a widespread legal institution in modern times, with the help of which married couples who do not wish to have certain legal regulations applied to their individual case, "tailor" rules for their coexistence.

Marriage contracts in this sense are to be distinguished from marriage contracts that were concluded in cultures in which the registration of marriages was not customary (examples: Ketubba , marriage in the Roman Empire ), so that the private law agreement of the spouses formed the only legal bond between them.

Marriage contracts in Germany

A prenuptial agreement is under German law only effective if it is notarized notarized will, otherwise, is contract form void. Since a marriage contract can contain far-reaching regulations, the legislature considers the advice of a notary as an impartial advisor to be indispensable. A marriage contract can be concluded before or during the marriage, in rare cases also after a final divorce . Regulations on the marriage contract can be found in § 1408 BGB .

In practice, the marriage contract is often combined with an inheritance contract . In the case of civil partnerships , the following principles can be applied analogously ; the corresponding contract between the partners is called a civil partnership contract.

Regulatory areas of the marriage contract

There are three main areas of regulation that can be covered by a marriage contract:

  • The property regime : If no marriage contract is concluded, the spouses live under German law in the property regime of the community of gains . In a marriage contract, the spouses can choose a different property regime, namely separation of property or community of property . The property regime of the community of gains can also be modified - if the community of gains is retained in principle. The agreement on a modified community of profits is particularly common, the only exception to which is that there is no compensation of profits in the event of a divorce. It can also be agreed that certain assets are not subject to the equalization of profits. In practice, this often occurs when a spouse brings inherited assets or ownership of a company into the marriage, which in the event of a divorce should remain with the spouse in question unaffected in any case and in its increased value.
  • The pension equalization: This is to be understood as the equalization of pension entitlements that the spouses acquire during their marriage. In the event of a divorce, the pension will be equalized, unless an effective marriage contract regulates otherwise. Since September 1, 2009, the legislature has expanded the possibilities for spouses to make agreements on pension equalization. The previous year deadline no longer applies. The agreement is still subject to control by the family court, Sections 6 and 8 of the Pension Equalization Act . A similar balancing the supply design option, but does not intervene only in case of divorce, the pension splitting .
  • Post-marital maintenance : The spouses can agree different regulations on post-marital maintenance, which are regulated in § 1570 ff. BGB . This includes the areas of care maintenance for children together, maintenance due to old age or illness as well as supplementary maintenance . In addition, there is also the possibility of defining asset management within the framework of the contract, whereby, contrary to what is provided by law, the spouses can agree that the assets of one are managed by the other. In contrast, agreements on maintenance during the marriage (e.g. for the period of separation) are generally not effective.

Other things can be agreed in a marriage contract, e.g. B. whether or when children are desired, how the coexistence should be organized etc. Such regulations are not enforceable.

Limits to freedom of contract

In principle, there is freedom of contract , i.e. the spouses are free to choose which regulations they want to include in the marriage contract. Up until 2001, marriage contracts were only declared ineffective in particularly exceptional cases.

Since 2001, however, the case law of the Federal Constitutional Court and the Federal Court of Justice has set limits to freedom of contract. If the marriage contract contains an evidently one-sided burden sharing and marriage- related disadvantages in the event of a divorce are not adequately compensated, the marriage contract can either be void due to immorality , or invoking the marriage contract can in individual cases violate good faith . Particularly problematic are agreements which, according to the case law of the BGH, intervene in the so-called “core area” of the law of the consequences of divorce. This includes post-marital maintenance due to the care of common children ( care maintenance ), maintenance due to old age, illness and ailments as well as pension compensation as anticipated old-age maintenance. In the event of immorality, the entire contract can be canceled.

A prime example of an ineffective marriage contract is the waiver of the economically inferior spouse on any form of care maintenance, but also on maintenance due to old age or illness. According to this case law, agreements on pension adjustment are also often ineffective.

In addition, the marriage contract may not distribute the maintenance obligations in such a way that the child's well-being is endangered or the agreement burdens the state as the carrier of the social transfer system. Marriage contracts can also be problematic in which an exclusion of maintenance leads to an inappropriate, one-sided disadvantage of the economically weaker partner e.g. B. leads due to possible marriage-related disadvantages. Marriage-related disadvantages can exist if, due to the way of life of the economically weaker partner, there has been an unrecoverable loss of salary during the marriage. The determination of the existence of marriage-related disadvantages is only subject to a secondary burden of presentation and proof and thus has a speculative part.

Regulations on the property regime, however, are usually effective. Because according to the Federal Court of Justice, this does not intervene in the core area of ​​divorce law.

Finally, an unequal negotiating position when concluding the marriage contract can lead to the marriage contract being void. According to a ruling by the Federal Court of Justice, the fact that the wife was pregnant when the marriage contract was concluded indicates an unequal negotiating position, which can lead to the ineffectiveness of the marriage contract as a whole.

Divorce Consequences Agreement

The divorce consequences agreement is a special form of the marriage contract . This is closed when it is very likely that the spouses will want to divorce the marriage. An agreement on the consequences of divorce usually enables a simplified divorce procedure, the amicable divorce. For this purpose, additional provisions are made in an agreement on the consequences of divorce, for example on child maintenance or on dealing with household items (see Section 133 FamFG ).

Cases with international contact

In cases with international contact, special regulations or other legal systems may apply. In detail, these are questions of international private law . If the spouses have the same nationality , for example, the law of the same nationality applies to their marriage, the marriage contract and a divorce , even if they live in another country (cf. in detail Art. 13 ff. EGBGB ). There may also be peculiarities if the spouses live abroad and the divorce of the marriage is applied for abroad. The question of the international jurisdiction of the family court concerned then often arises .

Marriage contracts in Austria

Austrian law provides for a limited community of gains as a statutory matrimonial property regime : Each spouse remains the owner of the property brought into the marriage and acquired during the marriage and is only liable for their own debts (separation of property). In the event of a dissolution of the marriage, however, the marital utility property, such as household effects and marital home, as well as marital savings are divided up.

Contracts that have a community of property and / or an inheritance contract as their subject matter are marriage pacts within the meaning of the ABGB . These require a notarial act .

Agreements on the division of marital property in the event of the marriage being dissolved are regulated in Section 97 of the Marriage Act. If it regulates the division of marital savings or the division of the marital home, a notarial act is required, otherwise the written form is sufficient.

Agreements on custody and maintenance of children together are purely declarations of intent and are not binding in the event of divorce.

literature

  • Heike Dahmen-Lösche: marriage contract - advantage or trap , 2nd edition, Munich 2011, Verlag CH Beck, from the series: Beck-Rechtsberater im dtv, vol. 50656
  • Gerrit Langenfeld: The marriage contract. Fair balance of interests through a marriage contract or divorce agreement . 11th revised edition. Deutscher Taschenbuch-Verlag, Munich 2005, ISBN 3-423-05226-0 , ( Dtv - Beck-Rechtsberater im dtv 5226).
  • Gerrit Langenfeld: Handbook of marriage contracts and divorce agreements . 6th revised edition. CH Beck, Munich 2011, ISBN 978-3-406-59521-9 .
  • Christoph Münch: Marriage-related legal transactions. Contract drafting manual . 2nd revised and significantly expanded edition. ZAP-Verlag for legal and legal practice, Münster 2007, ISBN 978-3-89655-252-5 .

See also

Individual evidence

  1. ↑ http://www.juraexamen.info/inhaltsteuerung-von-ehevertraegen/
  2. ↑ a b matrimonial property law . Help.gv.at, information page of the Federal Chancellery. Retrieved April 19, 2015.