Pre- and postnuptial agreements
Isn’t it unromantic to sign a prenuptial agreement describing the consequences of divorce long before the wedding? Only at first glance. Statistically, every third marriage fails in Germany; the rate is higher in large cities such as Hamburg. Couples should come to terms with this reality now instead of ignoring the possibility of a future break-up. As long as divorce is seen as a remote, hypothetical possibility, they will be open to a reasonable, balanced agreement. By the time dark clouds appear on the matrimonial horison, though, it will be much too late. As such, a timely prenuptial or postnuptial agreement is not only fair, but it avoids the needless pain, suffering and expense of court battles in the event of divorce.
It is often advisable to sign a prenuptial agreement before the wedding. Obviously, the spouses can also enter into a postnuptial agreement later on. Either agreement must be recorded by a notary, who will also provide impartial advice on your options and the legal ramifications of each one.
If spouses have not signed a notarial pre- or postnuptial agreement, they will be subject to the statutory matrimonial property regime of the community of accrued gains.
Spouses can also agree to live under the marital property regime separation of goods if they do not want to equalise their accrued gains in the event of a divorce.
However, the spouses’ interests are often better served by a modified community of accrued gains modified community of accured gains property regime, which adapts the statutory property regime to the individual case. It is generally preferable over the separation of property regime.
The community of property regime is rarely used anymore.
In addition to the property regime, pre- or postnuptial agreements often contain provisions on allimony and the equalisation of old-age pension rights.
By making up a pre- or postnuptial agreement, spouses can make different arrangements concerning their postnuptial alimony claims, including the specific amount and duration of the alimony obligation. They cannot, however, waive their right to alimony during the marriage in the pre- or postnuptial agreement. Nor can the agreement limit their children’s right to child support.