You are a couple and would like to conclude a marriage contract before or after marriage. Isn't it unromantic to think of the time of a possible separation?
We don't think so, because when you conclude a marriage contract, you as a couple determine what the equitable consequences of raising children and managing the household are. After all, details of a new employment relationship are not left to the law, but individual regulations are made in a contract. We have also found that the necessary path often strengthens a relationship, even if you decide not to conclude a marriage contract with your partner after consultation.
In our experience, the legal regulations are particularly inadequate when:
- one of you is an entrepreneur,
- there is a high income or age gap between you,
- one of you is very wealthy.
Insofar as the caring parent is an academic or would otherwise have good career opportunities, current case law means that the childcare parent, i.e. usually the mothers, is no longer fully compensated for the financial disadvantage caused by childcare. If you find this result unfair, the marriage contract can, for example, regulate an extension of the legal maintenance for the childcare parent.
At our law firm in Munich, we will discuss your living conditions with you and give you an overview of the legal consequences of a separation. We will then show you which settlement options are suitable for you in a marriage contract. After this step, we will give you the opportunity to discuss the results of our conversation alone as a couple.
If necessary, the results you have found will then be discussed again as an overall concept in a second conversation. As soon as the marriage contract has been drafted, we will once again give you the opportunity to clarify any open questions or problems with understanding the technical legal terms. Once everything has been clarified and the marriage contract meets your wishes, we will accompany you to the notary, where the marriage contract will be recorded.
Marriage contracts can be concluded before a notary, even after marriage. Below, we will essentially show you which regulatory options exist. Because a marriage contract should be tailored to your personal needs, this general information cannot replace individual advice.
If no marriage contract is concluded, the legal property regime of the community of gains applies. In divorce proceedings, all capital gains resulting from the marriage are therefore balanced in half. Assets that were gifted to one of the spouses, which were already in assets before the marriage or which were inherited, are also included in the gain in the amount of the increase in value.
By way of derogation from the law, the separation of property may be agreed or the gain may be modified, for example by taking over a company.
If no settlement is made, in the event of a divorce, the judge will divide in half all pension rights accrued during the marriage. Especially with a larger age difference, this often results in unfair results.
Example: The 60-year-old chief physician marries a 45-year-old nurse and retires shortly after marriage. Although the chief physician has acquired higher pension rights due to his higher income, in this example, should the marriage be divorced after 10 years, the nurse will be required to compensate for her pension rights. This is based on the fact that the chief physician did not acquire any additional pension rights during the marriage and the nurse therefore acquired higher pension rights during the marriage.
If no alimony agreement is made in the marriage contract, the legal provision means that both spouses (insofar as there is a maintenance claim) initially receive approximately the same to live. If income is high, it is therefore advisable to limit the maintenance claim to a maximum amount.
After a transition period, the alimony claim can be limited and limited in time. The limitation and time limit will result in the loss of the maintenance claim at some point. For parents caring for the children in particular, who have good career opportunities, current case law means that all disadvantages related to marriage or resulting from caring for their children are no longer compensated for. In my experience, talking about what you regard as fair maintenance in the event of separation and making resulting arrangements is a way of avoiding injuries, disputes and, ultimately, legal and court costs in the event of separation.
If a prenuptial agreement - which is also possible - is not concluded as a so-called separation or divorce agreement in the event of an already looming separation or divorce consequences, regulations on custody and handling often do not make sense. When consulting on a contract, we will nevertheless point out the consequences of a separation and give you food for thought should this happen to you.
In the case of self-employed people in particular, the bank, which is to grant a loan, is repeatedly required that the spouse or parents be granted a loan at all, must guarantee. This often means that the spouse or parents have to become completely overindebted when using the bank from the guarantee.
If you are claimed from a guarantee for a close relative, you should have a closer check whether your guarantee is not immoral.
A guarantee is immoral if the guarantor through the guarantee economically overwhelmed will and is close to the debtor. Under these conditions, it is presumed that the Guarantee ineffective is because the bank has exploited the guarantor's emotional connection with the debtor.
Economic overload is assumed by case law when the guarantor cannot even pay the current interest on the loan. The mere fact that the guarantor can make partial payments at all or has modest assets is not sufficient to regard the guarantee as effective. In order to be financially overwhelmed, the guarantor therefore does not have to be completely poor. In addition, the assessment of immorality depends solely on the financial circumstances at the time the guarantee levy is issued. It is therefore important to carefully check in individual cases whether the guarantee is immoral or not.
Es ist wichtig zu beachten, dass die Rechtslage je nach Land und Region unterschiedlich sein kann.
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