Marriage pact

A Turkish notary drawing up a marriage contract , painting by Martinus Rørbye , 1837

A marriage pact is a paid or unpaid contract, which is concluded with the intention of the marital union over the property (§ 1217 Abs. 1 ABGB ).

Not every property law contract between spouses is considered a marriage pact, but only those that largely replace the statutory property regime of the separation of property and thus establish a limited or comprehensive community of property between the spouses.

content

Content provided by law

Marriage pacts usually contain provisions about a

Community of property and / or a
Inheritance contract (§ 1217 Paragraph 1 ABGB).

The marriage pact can, but does not have to be, linked to a contract of inheritance .

Other contents of marriage pacts

Until the amendment of the Austrian Commercial Code (ÖABGB) on January 1st, 2009, § 1217 of the Austrian Civil Code (ABGB) standardized: “ Matrimonial pacts are those contracts which are concluded with the intention of establishing a marital union over the property, and primarily include the marriage property; the contradiction; Morning gift; the community of property; Administration and usufruct of one's own property; the succession, or the lifelong usufruct of the property determined in the event of death, and the widow's salary to the subject . "

The provisions on the marriage property, the contradiction and the morning gift were repealed as "no longer in keeping with the times".

Marriage property (original in § 1218 ABGB: Marriage property ) was, according to § 1218 f ABGB, the property that was handed over or pledged to the man by the spouse or a third party for her to ease the expenses associated with the marital company.

The abutment was under § 1230 Civil Code that, " What the groom or a third party the bride of propagating the Heirathsgutes was. The spouse is not entitled to enjoyment of this during the marriage; but if she survives the man, without a special agreement, she also deserves free ownership, although the marriage property has not been assigned to the man in the event of his survival. Neither the bridegroom nor his parents are bound to determine a contradiction. But in the same way in which the parents of the bride owe her a marriage good, it is also up to the parents of the groom to give him equipment appropriate to their property (§§. 1220 - 1223) . "

The morning gift according to § 1232 ABGB was the gift that the husband promised to give his wife on the first morning .

Whether in a marriage pact, as in German law in a marriage contract , other supplementary, not primarily property-related agreements can be made, e.g. For example, whether or when children are desired or how coexistence should be organized has not yet been finally clarified in Austria and Liechtenstein. However, as in Germany, such regulations are likely to be regarded as unenforceable.

Property rights in companies

Property rights in a company must be entered in the commercial register so that they have priority over future creditors of the company (Section 36 UGB ). See also § 56 IO (formerly § 56 KO and 26 AO ).

Contract autonomy

The autonomy of the contract also allows the above-mentioned and all other possible and permissible property law content that affect the property regime of the spouses to be made the subject of a marriage pact. What limits are there to freedom of contract due to a violation of morality or good faith in relation to marriage pacts, as has been worked out in particular in German case law from 2001 (e.g. for one-sided burden sharing, significant one-sided disadvantages in the event of divorce, etc. ), has not yet been finally clarified for Austria and Liechtenstein.

Contracting parties

Contracting parties to a marriage pact are bride and groom ( fiancé ) and spouse. According to Section 1217 (2) ABGB, the regulations on marriage pacts are to be applied to registered partners accordingly.

The asset allocation or the asset right granted can also be provided by third parties (e.g. the parents of the bride and groom).

Notarial deed

In accordance with Section 1 of the Notarial Acts Act, marriage pacts can only become valid in Austria if a formally valid notarial act is drawn up ( authentication ). Among other things, this is intended to prevent a partner from being hasty or disadvantaged when entering into a marriage pact. There are no notaries' offices in Liechtenstein.

resolution

Marriage pacts can at least go through

Amicable dissolution,
the death of a spouse,
Bankruptcy (§§ 1260 - 1262 FL-ABGB ; § 1262 öABGB ),
Divorce (§ 68, § 42 Paragraph 3 in conjunction with §§ 73 ff FL-EheG, §§ 1263 FL-ABGB; §§ 81 ff öEheG, § 1266 öABGB),

to be resolved. In the event of the death or bankruptcy of a spouse, the agreed quotas will be divided (e.g. half).

In the event of a divorce, a distinction must be made between the fault of one of the spouses in the dissolution of the marriage (see also §§ 81 ff öEheG , §§ 1265 and 1266 öABGB; § 1265 para. 1 and 2 FL-ABGB, §§ 73 ff FL- EheG).

If the marriage is null and void, everything is to be restored to its previous status in accordance with § 1265 ÖABGB and § 1265 Abs. 1 FL-ABGB, whereby compensation can also be imposed here according to the fault of one of the spouses.

Individual evidence

↑ In the Principality of Liechtenstein , the Austrian General Civil Code was largely adopted and still followed today. The provisions of the ABGB mentioned here relate (unless specifically noted) to the Austrian ABGB , but are largely identical in the Liechtenstein ABGB . In Austria and the Principality of Liechtenstein, the law assumes that the property regime of the separation of property is agreed upon when entering into a marriage (Section 1237 ABGB). If a community of property is to be established, a special agreement is required (Section 1233 ABGB).

↑ In Liechtenstein, Sections 1218 and 1219 were repealed by LGBl. 2012 No. 265, Sections 1230 and 1231 were repealed by LGBl. 1993 No. 54 and Section 1232 was repealed by LGBl. 1993 No. 54.

^ Ferdinand Kerschner in " Bürgerliches Recht" , Volume V, Family Law, 4th edition, Springer Verlag, Vienna 20120, ISBN 978-3-7091-0071-4 , p. 70.

↑ parents .

↑ Previously contained in Art 6 No. 7 of the Introductory Act to the Commercial Code (EVHGB).

↑ Bride and groom only with regard to the marriage that actually took place at a later date - this agreement can therefore only be concluded subject to a condition precedent.

↑ RGBl. No. 76/1871.

↑ The Austrian and Liechtenstein Marriage Acts also differ in particular with regard to the division of fault. The provisions and principles of marriage law mentioned below refer to the Austrian marriage law, unless otherwise noted.

[1] In the Principality of Liechtenstein , the Austrian General Civil Code was largely adopted and still followed today. The provisions of the ABGB mentioned here relate (unless specifically noted) to the Austrian ABGB , but are largely identical in the Liechtenstein ABGB . In Austria and the Principality of Liechtenstein, the law assumes that the property regime of the separation of property is agreed upon when entering into a marriage (Section 1237 ABGB). If a community of property is to be established, a special agreement is required (Section 1233 ABGB).

[2] In Liechtenstein, Sections 1218 and 1219 were repealed by LGBl. 2012 No. 265, Sections 1230 and 1231 were repealed by LGBl. 1993 No. 54 and Section 1232 was repealed by LGBl. 1993 No. 54.

[3] Ferdinand Kerschner in " Bürgerliches Recht" , Volume V, Family Law, 4th edition, Springer Verlag, Vienna 20120, ISBN 978-3-7091-0071-4 , p. 70.

[4] parents .

[5] Previously contained in Art 6 No. 7 of the Introductory Act to the Commercial Code (EVHGB).

[6] Bride and groom only with regard to the marriage that actually took place at a later date - this agreement can therefore only be concluded subject to a condition precedent.

[7] RGBl. No. 76/1871.

[8] The Austrian and Liechtenstein Marriage Acts also differ in particular with regard to the division of fault. The provisions and principles of marriage law mentioned below refer to the Austrian marriage law, unless otherwise noted.