Prenuptial agreement

Through a marriage contract, the husband and wife give certain rules for marriage, but especially for the case of a possible divorce. A prenuptial agreement is - according to German law - only effective if it is notarized, otherwise the contract is void shape. Since a prenuptial agreement may contain far-reaching provisions, the legislator considers the advice of a notary public as impartial advisors indispensable. A prenuptial agreement may be entered into before or during the marriage, in rare cases, after legal divorce. Regulations for the marriage contract can be found among others in § 1408 BGB.

In practice, the marriage contract is often associated with a contract of inheritance. At life partnerships, the principles set out below are applicable by analogy; the relevant contract between the partners is called partnership agreement.

In Islamic law, the marriage contract is an indispensable basis for marriage. The contract can be made orally or in writing, depending on the religious orientation of two witnesses are also required.

Regulatory areas of the marriage contract

Priority Three main areas of regulation are captured by a marriage contract:

• The goods status: If no marriage contract, the spouses live under German law in matrimonial community of accrued gains. In a marriage contract, the spouses can choose another type of regime, namely separate property or community property. It can also - be modified the marital community of accrued gains - while essentially maintaining the Zugewinngemeinschaft. Particularly common is the agreement of a modified Zugewinngemeinschaft in which is set as the only exception that a gain compensation is not performed in the case of divorce. Also, it may be agreed that certain assets are not subject to the equalization of accrued gains. This is in practice often happens when one spouse inherited wealth or property brings in a company into the marriage, which in any case and also in its value increases is untouched remain with the spouse in question in the event of divorce.

• The supply balance: Includes the balance of the pension rights claims is to be understood that acquire the spouses during the marriage time. If it comes to divorce, the pension adjustment takes place, unless an effective regulates before contractual agreement to the contrary. Since 1 September 2009, the legislature has the ability of spouses to reach agreements on the supply balance expanded. The period of one nationality requirement is omitted. The deal is still subject to review by the Family Court, § § 6 and 8 Supply Compensation Act Template: § § / Maintenance / juris - side. A similar balancing supply the design option, but does not intervene only in the event of divorce, the pension splitting.

• The post-marital maintenance: The spouses can alternative arrangements for maintenance after divorce agree, which is governed by § 1570 et seq. Agreements for maintenance during the marriage ( for example, for the period of living apart ), however, are not effective in most cases.

In a marriage contract, other things can be agreed upon, such as whether or when to have children, such as cohabitation is to be configured, etc. However, such regulations are not enforceable.

Limits of freedom of contract

Basically, freedom of contract, that is, the spouses are free, what rules they want to include in the marriage contract. By 2001, marriage contracts were declared only in particularly exceptional cases ineffective.

Since 2001, the jurisprudence of the Federal Constitutional Court and the Federal Court of freedom of contract, however, has its limits. If the marriage contract contains an obvious one-sided load distribution and before handicaps in the case of divorce are not properly balanced, the marriage contract may be invalid either because of moral standards, or the appeal to the marriage contract may violate the individual case of good faith. Particularly problematic are agreements that engage law of the Supreme Court in the so-called " core area" of the consequences of divorce law. This includes the post-marital maintenance because of the support of common children ( care maintenance), the maintenance because of old age, sickness and disease as well as equalization of the pension age than anticipated maintenance. In moral standards of the entire contract can be canceled.

Prime example of an ineffective before contractual agreement is the lack of economically inferior spouse to any form of maintenance care, but also to maintenance because of age or illness. Agreements relating to the supply balance are often invalid under this jurisdiction.

The marriage contract may, moreover, the maintenance obligations not distribute so as to allow the child's welfare is at risk or burden on the agreement the state as a carrier of social transfer systems over charge. Likewise, marriage contracts can be problematic where a maintenance exclusion for example, an unreasonable, unilateral deprivation of economically weaker partner results due to possible before handicaps. Marriage -related disadvantages can be when it came due to the way of life of the economically weaker partner during the marriage to insurmountable loss of pay. The determination of the existence subject before handicaps only a secondary presentation and proof load and thus has a speculative component.

Regulations on matrimonial property regime, however, are effective in most cases. For it makes no intervention by the Federal Court in the core area of ​​the consequences of divorce law.

Finally, it can also be an unequal bargaining position at the conclusion of the marriage contract mean that the marriage contract is void. A ruling by the Federal Court indicated the fact that the wife was pregnant at the conclusion of the marriage contract, unequal bargaining power, which can generally lead to the invalidity of the marriage contract.

Divorce Settlement Agreement

One particular form of marriage contract is the result of divorce agreement. This is closed, if it is for the spouse with a high probability that the divorce is desired. Divorce Settlement Agreement generally allows a simplified divorce procedures, the consensual divorce. For this purpose, additional regulations will result in a divorce agreement made ​​about the child support, or to address the household (cf. § 630 ZPO).

Cases involving foreign countries

In cases involving foreign countries special regulations or other laws may apply. Specifically, these are questions of private international law. Do the spouses about both the same nationality shall be applied for their marriage, the marriage contract and divorce the right of the matching nationality, even if they live in another country ( for details, see Articles 13 et seq BGB ). There may also be special features, if the spouses are living abroad and the divorce is sought abroad. Often, then, the question of the international competence of the Family Court.