As unromantic as it sounds: A matrimonial contract primarily serves as a precaution in the event of a divorce. The spouses can, for example, make clear arrangements on the amount of post-marital maintenance/alimony, and protect themselves against potential surprises with regard to the distribution of assets. Most married couples can certainly live without a matrimonial contract, as divorces do not usually lead to unreasonable burdens. We can advise you on these matters.
The key points of a matrimonial contract are frequently the division of assets in the case of a divorce (matrimonial property law), the adjustment of retirement pension expectancies (pension rights adjustment) and questions regarding maintenance/alimony (maintenance law). Since the regulations of a matrimonial contract are of considerable financial importance, the notarial certification is legally required for your protection.
Primary motive for the completion of a matrimonial contract should not be, in this way, to prevent the supposed self-liability of the other spouse’s obligations, since you are also not liable for the debts of your spouse, even if you have not completed a matrimonial contract and are married under the statutory matrimonial property regime of joint ownership of the increase in capital value of assets. It is a widespread falsehood that, upon marriage, a spouse enters into the obligation of the debt of the partner.
A matrimonial contract can be created either before or during the marriage. In most cases, it is advisable to combine a matrimonial contract with inheritance regulations, since there is usually a need for regulation, particularly when children are present.
Matrimonial Property Regime
If no matrimonial contract has been concluded, then the married couple lives in the statutory matrimonial property regime of joint ownership of the increase in capital value of assets. The married couple’s property remains strictly separate. No spouse is liable solely through the marriage, for the debts of the other spouse. The significance of the joint ownership of the increase in capital value of assets is therefore not apparent at the time of the marriage but rather, only at the end of the state of matrimonial property regime (by divorce or death): Then there is a financial balancing out between the spouses. The spouse, who has obtained the higher capital gain since the closure of the marriage, must, according to the statutory regulation, pay the other spouse half of the amount, by which his gain exceeded the gain of the other spouse.
The equalization of accrued gains can be excluded in whole or in part. Since such an exclusion is usually disadvantageous to the spouse who is not employed, this step should be carefully considered. Usually, a modification of the equalization of accrued gains is sufficient, for example, by excluding certain assets (i.e. a family business; specific property owned) in the calculation of the goods acquired during marriage.
If you want to completely exclude the equalization of accrued gains, this is done by agreeing to the separation of property. Here, each spouse retains their fortune, which they acquired before and during the marriage. If divorce occurs, “each person takes their seven things and goes”. This arrangement is often chosen when both spouses are employed. However, if one of the spouses foregoes professional activities, for example, due to child-rearing, the agreement on the separation of property is not usually an appropriate constellation.
Today, it is extremely rare that the community of property is agreed upon, in which the assets acquired before and during the marriage, are the common property of the married couple and that the spouses are liable for the debts of the other spouse.
Claims for Maintenance/Alimony
Generally, each spouse is responsible for their own support after a matrimonial divorce. Only when special situations are present, if, for example, a spouse cannot work because of the care of the children, is there a duty to pay the former spouse’s support. Additional reasons for the payment of post-marital maintenance are in particular, an illness existing during the divorce, the age of the spouse or the lack of suitable employment opportunities on the employment market.
Amendments to the statutory provisions concerning the post-matrimonial maintenance can, in principle, be contractually defined. Certainly, the consequences of a (partial) waiver of maintenance are especially for the spouse who looks after the common children after the divorce, and where required also for the general good (social neediness of the relinquishing person!) so drastic, that the freedom of contract configuration is limited by the jurisdiction of the Federal Court of Justice. Therefore, a detailed and impartial consultation by a notary is highly recommended. During the marriage – consequently also the time between separation and divorce – a waiver of maintenance is not permissible.
Spousal support is not to be confused with child support. Each parent is obligated to keep their own children in accordance with the law. This maintenance obligation serves to protect the child. It is therefore self-evident that this support obligation cannot be excluded by contract.
Pension Rights Adjustment
The pension rights adjustment regulates the retirement provision in the case of divorce. This law provides that retirement pension expectancies acquired during the marriage, are divided equally by the court with the help of the insurance providers, so that as a result, the spouses are thus positioned approximately as if they had both paid equal amounts into the pension fund during the marriage. This regulation, like the equalization of accrued gains, above all protects the spouses who, for example, (partially) foregoes employment due to child-rearing and therefore cannot acquire a pension or only has a lower retirement pension expectancy.
Agreements are also permissible for pension rights adjustment. A renouncement has drastic consequences to the spouse who is not employed, or who is only employed in a limited capacity, as they risk their retirement provision. For this reason, the contract freedom is also restricted with respect to this by federal law. Here, as notaries, we can also impartially advise you in detail.
A detailed personal meeting with the notary should be planned before the conclusion of any marriage contract. For the meeting, we ask you to answer the following questions and to bring along the following documents:
Information about Children
Notary fees cannot be levied or negotiated at the will of the notary; they are strictly regulated by law. Decisive is the Court and Notary Fees Act that applies throughout federal territory. Therefore, the same fees are always charged by each notary for the same notarial activity.
The notarization fees are based on the so-called commercial value, whereby a distinction must be drawn between individual contractual provisions in the case of a matrimonial contract. Provisions on matrimonial property law, for example, the agreement on the separation of assets is based on the value of the joint assets of both spouses. Debts are deducted from each spouse up to half of their assets. Agreements for alimony, on the other hand, are dependent on the amount of potential maintenance provision entitlement. The same applies to arrangements for pension rights adjustment. In the above-mentioned fees, the costs for consultation and draft creation as well as changes are included. In addition, there are usually some additional small expenses for copies, postage and telephone as well as the statutory value-added tax.