General information
Some spouses and civil partners want to make provisions for divorce or annulment as soon as the marriage or civil partnership is established. Other (future) spouses/partners sometimes find this “unromantic”. Nevertheless, it should be noted that although the divorce rate has fallen in recent years, around 40 percent of all marriages still end in divorce. Divorce is therefore always a realistic scenario. It is therefore important as a first step before entering into a marriage or civil partnership agreement: check whether your relationship is a good basis for a lasting and stable partnership!
If you have then decided to marry or enter into a civil partnership, the following applies: A precautionary marriage contract is not necessary for all couples! Rather, couples should reconsider the structure of their intended partnership and check whether the statutory divorce consequences are suitable for them or whether an adjustment makes sense for them.
A divorce settlement agreement is also a marriage contract. The only difference is that the agreement on the consequences of divorce is not concluded at the beginning or during the course of the marriage, but only when the parties already intend to divorce. A divorce settlement agreement is often useful if you want to simplify your divorce and can reach agreement with your previous partner on at least some points.
Community of accrued gains
Unless you agree otherwise in a marriage or civil partnership contract, you live under the statutory matrimonial property regime of community of accrued gains if German law applies.
ATTENTION: Community of accrued gains does not mean that you automatically form joint assets and are liable for each other's debts!
The gain is only settled at the end of the marriage by payment (see below) and, in the event of death, by increasing the statutory inheritance share if applicable. Each spouse retains their own assets and can continue to acquire assets on their own. Likewise, each spouse is solely liable for the debts they have incurred, in particular for debts arising from their business activities. Joint liability on the part of the other spouse only comes into consideration in the case of transactions to adequately cover living expenses - i.e. generally only for smaller amounts. You cannot exclude this liability in a marriage contract. Otherwise, you are only liable for your partner's debts if you are jointly liable, in particular if you co-sign a contract as an additional debtor or issue a guarantee.
You therefore do not have to conclude a prenuptial agreement just to exclude liability for your partner's debts! This is a common misunderstanding.
The most important legal consequences of divorce - briefly summarized - under German law are as follows:
Equalization of accrued gains
In the event of divorce, the so-called equalization of accrued gains takes place upon application. In a first step, the court determines the amount of the gain of both partners. Gain is the amount by which each partner's assets have increased from the beginning of the marriage until the lis pendens of the divorce petition. It is therefore the difference between the initial and final assets.
Example: The wife had assets of € 50,000 at the beginning of the marriage and assets of € 250,000 at the end of the marriage. Her gain amounts to € 200,000. The husband had assets of € 100,000 at the beginning of the marriage and assets of € 150,000 at the end of the marriage. His gain amounts to € 50,000.
Special rule for gifts and inheritances: Inheritances and gifts from third parties that a spouse receives during the marriage are not only taken into account in the final assets. They are also added to the initial assets. It is therefore treated as if the spouse had already owned these items at the beginning of the marriage. The gifts and inheritances therefore do not initially affect the amount of the gain. However, if the gifted or inherited items increase in value during the marriage, this increase in value is reflected solely in the final assets. In this respect, the gain also increases.
In the second step, the court determines the difference (differential amount) between the spouses' two amounts of accrued gains.
Example: In the example, the wife has realized a gain of € 200,000 and the husband a gain of € 50,000. The difference (differential amount) is € 150,000.
The partner who has made a higher gain must pay half of the difference to the partner who has made a lower gain.
Example: In the example, the wife has made a higher gain than the husband. The difference is € 150,000, half of which is € 75,000. The wife must therefore pay € 75,000 to the husband as equalization of accrued gains.
With regard to the equalization of accrued gains, there are various possible arrangements, for example the complete exclusion, the exclusion of individual assets from the equalization of accrued gains and the limitation to a maximum amount. The partners can also compensate for an exclusion by making an equalization payment, possibly staggered according to the number of years of marriage up to the divorce.
Pension equalization
During the marriage/life partnership, both partners have often acquired rights to old-age or invalidity pensions from pension providers (e.g. statutory pension insurance, company pension scheme, Riester pension, occupational pension, civil servants' pension). In the event of divorce, the court divides all entitlements acquired during the marriage equally between the partners. Each partner therefore receives half of the other partner's entitlements, provided that the entitlements were acquired during the marriage (and not before). There is a back-and-forth settlement for each individual entitlement; the entitlements are not netted.
In principle, the partner entitled to equalization receives half of the entitlement directly from the pension provider with which it also existed for the other partner (so-called internal division). If, for example, the entitlement was with the statutory pension insurance scheme, the partner entitled to equalization also receives half of the entitlement from the statutory pension insurance scheme (i.e. half of the earnings points of the partner obliged to equalize). If both spouses have already acquired entitlements with the same pension provider, this will be offset as an exception, i.e. only the difference will be compensated.
If, in exceptional cases, the entitlement cannot be settled by dividing the entitlement with the same pension provider (for example, because the pension provider's articles of association exclude this), a so-called external division takes place: in this case, the entitlement is transferred to another pension provider determined by the beneficiary.
Only if an entitlement is not yet ready for equalization at the time of the divorce (for example, entitlements that are not yet sufficiently established, foreign entitlements) is there only a claim to pension equalization under the law of obligations. This means that the beneficiary is entitled to payment of part of the (possibly later) pension, assignment of the corresponding part of the pension and, if applicable, a one-off payment as compensation.
Various agreements are also possible in the area of pension equalization, in particular full or partial exclusions as well as netting agreements, in each case possibly in return for compensation payments, which in turn can take various forms.
Maintenance
If the spouses are separated, one spouse may demand maintenance from the other spouse that is commensurate with the income and financial circumstances of the spouses if they are unable to provide this themselves. It is not possible to waive this separation maintenance, which is owed until the divorce.
After the divorce, one spouse can demand maintenance from the other if he or she is unable to provide sufficiently for his or her own living expenses, if and because one of the following conditions for maintenance applies:
- Care of a joint child
- Age
- Illness or infirmity
- Unemployment / no sufficient income from gainful employment
- Training, further training, retraining
- other equitable grounds
The court can later reduce the maintenance and also limit it in terms of time. In particular, it takes into account the duration of the marriage.
Complete or partial exclusion and limitation agreements (e.g. limitation to a maximum amount) are also possible with regard to maintenance, possibly also in return for compensation payments.
International cases
Many marriages and partnerships have an international dimension. It is then possible for foreign law to apply - in whole or in part - to the legal relationship. This may be the case in particular if one or both partners
- was or is a foreign national
- had or has his/her habitual residence abroad
- owns assets abroad
In these cases, the applicable law must be determined in accordance with the provisions of German, European and foreign conflict of laws. The spouses/partners may also determine the applicable law themselves. If a marriage/partnership agreement is to be concluded in Germany, the parties often choose German law. We will be happy to advise you on the law applicable to your marriage/partnership as well as on the choice of law and other regulatory options.
Advice and appointments
Pre-nuptial agreements must always be individually adapted to the respective life situation of the partners and the planned structure of your marriage. Please arrange a personal meeting with our office for this purpose. A joint meeting is also generally recommended for a divorce settlement agreement.
Depending on the case constellation, the following data and documents are required in order to draw up a precautionary marriage contract or a divorce settlement agreement. Please send us these as far as possible before the first meeting so that we can prepare this for you in the best possible way:
- Names including maiden names, dates of birth, place of birth, nationalities and addresses of both spouses
- E-mail addresses and telephone numbers of both spouses
- Place and time of the marriage
- Habitual residence (center of life) of the spouses at the time of marriage
- Any joint children, their names and ages
- Joint desire to have children
- Any children from previous relationships, their names and ages
- Any marriage-related interruptions to employment (in particular for childcare and/or housekeeping)
- Occupation and employer of both spouses
- Average monthly net income of both spouses
- Approximate amount of the assets and debts of both spouses
- Approximate amount of pension entitlements acquired by both spouses during the marriage and their type (e.g. statutory pension insurance, civil servant pension, Riester pension, company pension scheme)
- Any maintenance obligations and maintenance claims of both spouses, in particular towards third parties
- Any marriage contracts already concluded (please bring or send a copy, if not notarized in Monheim am Rhein)
- Any joint and individual wills and contracts of inheritance (please bring or send a copy, if not notarized in Monheim am Rhein)
- Any joint real estate with land register details
- Any powers of attorney, in particular general and precautionary powers of attorney, granted to the other spouse (please bring or send a copy, if not notarized in Monheim am Rhein)
Only in the case of an agreement on the consequences of divorce:
- Date of separation
- Date of filing the divorce petition
- File number at the family court
- Names and addresses of the advising lawyers
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