Cologne Higher Regional Court, 25 October 2010, 4 UF 158/10
In Germany, a third of all marriages now fail, often resulting in disputes about the division of property or the existence of pension or maintenance claims.
The conclusion of a marriage contract is therefore a sensible alternative in order to settle these points of dispute as conclusively as possible in advance.
Such a marriage contract can be concluded before the marriage or during the marriage and must be notarised.
In particular, the marriage contract should regulate the matrimonial property regime between the spouses. In principle, German law distinguishes between three matrimonial property regimes:
1. the statutory matrimonial property regime of the community of accrued gains (§§ 1363 - 1390 BGB), which generally applies if no other matrimonial property regime has been agreed (i.e. if there is no marriage contract),
2. the contractually agreed separation of property (§ 1414 BGB) and
3. the contractually agreed community of property (§§ 1415 - 1518 BGB).
A.) Statutory matrimonial property regime (community of accrued gains)
The community of accrued gains means that
- The spouses' assets remain separate.
- The other spouse is generally not liable for the debts of the other spouse (except, for example, in the case of jointly incurred debts).
- Each spouse can dispose of his or her assets without the consent of the other.
- In the event of divorce, the so-called equalisation of accrued gains takes place, i.e. the surplus assets generated during the marriage are divided and must be equalised by the spouses.
B.) Separation of property
Separation of property can be agreed by means of a marriage contract. In such a case, there is no equalisation of assets, but each spouse is only entitled to the part of the assets that they have earned during the marriage.
The conclusion of a marriage contract is particularly recommended for marriages between spouses who have very different levels of wealth.
The conclusion of a marriage contract is also recommended in order to prevent the liquidation of the company of one of the spouses in the event of divorce.
C.) Community of property
In the case of a contractually agreed community of property, all of the spouses' assets become their joint property.
However, it should be noted here that the spouses are not only jointly authorised to dispose of the property, but are also jointly liable for all liabilities.
Due to supreme court decisions, the freedom of contract in marriage contracts has so far been severely restricted by declaring certain regulations, e.g. in the area of pension equalisation or childcare maintenance, to be inviolable with reference to the core area theory.
Marriage contracts that contained provisions that restricted this core area too much were therefore often declared immoral on judicial review, so that the statutory matrimonial property regime was applied again.
In recent years, however, case law seems to have returned to the freedom of contract and therefore grants spouses significantly more freedom of disposition with regard to their own affairs.
In this context, the above-mentioned judgement should also be mentioned, which dealt with the question of the immorality of a marriage contract.
Facts of the case: Both spouses had already agreed a marriage contract at the conclusion of the marriage, which stipulated the separation of property between the spouses.
In accordance with this agreement, the plaintiff was therefore not to receive half of the acquired assets, but only the share generated by her.
This provision should also apply in the event of hardship. The plaintiff ultimately challenged the marriage contract as immoral overall.
Cologne Higher Regional Court: The Cologne Higher Regional Court did not follow the plaintiff's opinion and considered the marriage contract to be valid as a whole.
In the opinion of the court, it is fundamentally the right of the spouses to organise their cohabitation independently and free from legal requirements according to their individual ideas and needs.
In this respect, the freedom of contract relating to the consequences of divorce arises from the legitimate need to agree on deviations from the legally regulated consequences of divorce that better suit the individual marital image of the spouses.
In this way, the joint responsibility of the spouses for each other can be excluded from the outset, for example, from the life risks of one partner.
It is true that the fundamental disposability of the consequences of divorce should not lead to the protective purpose of the statutory provisions being arbitrarily undermined by contractual agreements.
However, this is only the case if the regulation results in an evidently one-sided distribution of burdens that is not justified by the individual organisation of the marital circumstances and that is unacceptable for the burdened spouse on a reasonable assessment of the nature of the marriage.
In the opinion of the court, however, it could not be assumed in this case that the agreement on the exclusion of pension equalisation alone or in conjunction with the other provisions of the marriage contract, even at the time of its conclusion, obviously led to such a one-sided distribution of burdens in the event of divorce that - irrespective of the future development of the spouses and their living conditions - it should be refused recognition by the legal system in whole or in part due to a breach of morality, with the result that the statutory provisions would take its place.
Source: Higher Regional Court of Cologne
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