Marriage contract

Is a marriage contract necessary?

The topic of a marriage contract is highly discussed and emotionally charged. On the one hand, some people believe that a marriage contract is not neccessary when you really love someone; nobody wants to think that their marriage might fail. On the other hand, some people say that you should never get married without the insurance of a marriage contract.

However, the neccessity of a marriage contract depends widely on the circumstances of each case and cannot be answered generally.

Marriage without a contract?

Property and debts of the spouses from the time before the marriage still only belong to that one spouse after the marriage. In the case of a divorce, only the assets that were accumulated during the marriage will be split in half. This means that the spouse with a lower or no income during the marriage, for example because he or she took care of the children, is being protected by the law, because that spouse was not able to earn as much as the other one. This legal institution is called “Zugewinngemeinschaft”, which is regulated in § 1363 BGB.

When should you draft a marriage contract?

A marriage contract does not have to be drafted before the marriage. It is also possible to draft it after you got married, § 1408 BGB. This way, you can preserve the romance of getting married and sort out the unromantic matters afterwards. Especially in the case of a joint venture, a marriage contract is advisable.

What regulations should be in the marriage contract?

A marriage contract can especially contain a regulation of a separation of property (“Gütertrennung”) (the seperation of property will also have to be regulated specifically for the supply equalization/”Versorgungsausgleich” and can be modified). Seperation of property means that the accumulated assets during the marriage are strictly seperated and will not have to be split between the spouses in a divorce.

Also possible is the regulation of a “Gütergemeinschaft” (community of property), §§ 1415 ff. BGB, which is the opposite of the seperation of property. So far, this type of regulation has not been very popular in Germany.

Your decision matters!

On the one hand, a marriage contract can disadvantage the financially weaker spouse and therefore create an “unfair” divorce. It can also lead to the loss of tax reductions in the case of the death of one of the spouses. On the other hand could a marriage contract lead to a “fairer” allocation of the accumulated assets and it could also fast-track the divorce.

In the end, everybody has to decide for themselves, if, when and how they want to draft a marriage contract.

We will provide counsel on the possibilities and support you, whatever your decision might be!