From the Handelsblatt archive: A marriage contract is considered unromantic. But without a contract, rigid rules apply. This can be expensive for entrepreneurs, property owners and couples with children.
Newly married: It is best to conclude a prenuptial agreement at the beginning of the marriage. Photo: Getty Images
Frankfurt. Unromantic, unnecessary, expensive – these are typical arguments against a marriage contract. What many people overlook: When they get married, every couple automatically concludes a contract, not with individual regulations, but with legal standards. These do not always fit your personal life situation.
Then a marriage contract can make sense. The costs vary greatly depending on the individual case. In the Handelsblatt, lawyers and notaries explain which rules apply without a marriage contract, how the fees are made up and where money can be saved.
What applies without a marriage contract?
Without an individual marriage contract, couples find themselves in an accrued community after the wedding. In the event of a divorce, they divide the assets they earned during the marriage through the equalization of gains. Donations and inheritances are left out.
If one partner is a shareholder in a successful company, the gain at the end of the marriage can be very high. Real estate can also increase the amount enormously. Even for an item that was purchased before the wedding, the increase in value that occurred during the marriage is included in the gain.
The pension entitlements are also divided between the partners. This refers to the entitlements to old-age pensions upon reaching retirement age. This is called pension equalization. In addition, there may be a claim for post-marital maintenance.
How is the compensation for gains calculated?
Assume that the man brought nothing into the marriage and contributed no income in between. The woman's assets, on the other hand, have increased from 100,000 to 300,000 euros. Then, in the event of a divorce, she would have to pay him half of the amount that was gained during the marriage - in this example, 100,000 euros.
As a basis for such calculations, the partners should document their assets for the wedding day. “If the initial assets are not documented, the court will calculate zero euros when equalizing the gains,” says Eva Becker, a specialist in family law from Berlin. This means that more assets would have to be shared with the future ex-partner.
What does the marriage contract regulate?
An individual marriage contract is usually a so-called modified community of accruals. “In principle, everything can be regulated in such a contract – as long as one partner is not completely taken advantage of,” says Becker. Otherwise a court could declare the contract unconscionable.
This could happen, for example, if a partner was completely excluded from the division of pension rights without paying him any financial compensation.
One of the common provisions of a marriage contract is that company shares or real estate that were not purchased together are excluded from the equalization of gains. In addition, post-marital maintenance payments are often agreed upon that go beyond the legal requirements. “Such agreements are particularly made by couples who want to have children,” says Becker.
The lawyer observes that more and more well-educated and professionally successful women want a marriage contract. “You can calculate what it means for your career and your income if you reduce your professional working hours in order to raise children,” says Becker. “That’s why they want to regulate in advance how such a reduction will be compensated for.” This could be done, for example, through maintenance payments.
In the experience of Hannah-Silvia Heise, a notary public from Darmstadt, the division of employment and care work is a frequent topic of dispute between couples.
“I attach great importance to a detailed preamble in my contracts,” says Heise. "For example, you can record how the partners imagined the division of employment and care work at the beginning of the marriage. If things turned out differently in practice, you can refer to the original plans if the marriage breaks down."
What many people don't know: You don't need a prenuptial agreement to protect yourself from possible debts from your partner. As long as the partners do not take out a loan together or guarantee each other, everyone has their own fund. However, debts have an impact when calculating the equalization of gains.
When is the marriage contract concluded?
A prenuptial agreement can be concluded at any time during a marriage. This often happens shortly before the wedding. However, a prenuptial agreement is still possible even before a divorce; it is then called a divorce consequences agreement.
Who draws up the marriage contract?
A marriage contract can be drawn up by both a notary and a family law specialist. However, many regulations require notarization. This includes changes to the matrimonial property regime as well as regulations on real estate and maintenance. The contract drawn up by a lawyer must then be certified by a notary.
Important for the decision between a notary and a lawyer: While lawyers represent the interests of their respective clients, notaries have to mediate neutrally between the two partners. That's why couples can hire a notary together, but each partner needs their own lawyer to represent their interests individually.
One partner's lawyer drafts the contract, and the other partner's lawyer then reviews it. “The fee for the second lawyer is likely to be lower than for the one who drew up the contract,” says Becker.
What costs are incurred by the notary?
Notaries must always bill in accordance with the Court and Notary Fees Act (GNotKG). The amount of the fees depends on the so-called business value. “Individual agreements are not permitted, which is why the same service costs the same for every notary nationwide,” says Sophie Godt-Nordhues, member of the management of the Federal Chamber of Notaries in Berlin.
How the business value is made up in a marriage contract depends on the individual regulations. The so-called modified net worth is central. To do this, debts are deducted from the total assets - but up to a maximum of half of the assets.
An example: A couple has a modified net worth of 500,000 euros when the contract is concluded and wants to exclude the equalization of gains in all cases of termination of the marriage, with the exception of death. In addition, a post-marital maintenance payment of 1,200 euros per month is agreed for three years; pension equalization is excluded. The notary would then charge a total of 2,446 euros for the notarization process.
If, on the other hand, only shares in a company are to be excluded from the equalization of profits, only their value would be used as goodwill for the fee calculation. The fee for a maintenance agreement is calculated in the same way: If one partner promises the other 1200 euros per month for three years after the divorce, the sum is the business value.
"In the case of pension equalization regulations, the determination of the business value depends very much on the individual case. If regulations are desired, the notary can provide information about the expected costs as part of the initial consultation," says Godt-Nordhues.
Important: Whether the notary draws up the contract himself or certifies a contract drawn up by a lawyer does not play any role in the amount of the fees.
What are the costs for a lawyer?
Lawyers calculate their fees according to the Lawyers' Remuneration Act (RVG). The basis for the calculations is generally the item value. However, lawyers can negotiate their fees as freely as possible outside of court. “There is no obligation to charge based on the value of the item; a fee can also be based on the time required,” says Becker.
According to §14 RVG, lawyers should determine the fee “in the individual case, taking into account all circumstances, in particular the scope and difficulty of the lawyer's work, the importance of the matter and the income and financial circumstances of the client, at their reasonable discretion”.
According to the German Lawyers' Association's legal cost calculator, the example case outlined above would result in a legal fee of 13,109 euros. This consists of the business fee and the settlement fee. “In practice, lawyers will tend to charge a lower fee for a simple prenuptial agreement,” says Becker. “However, I would always charge the settlement fee when negotiating a contract, as this ultimately creates a liability risk for lawyers.”
It's often worth negotiating with your lawyer about remuneration, especially if you use them frequently, says Becker. Flat rates are sometimes also possible.
Where can costs be saved on a prenuptial agreement?
Many notaries are also lawyers. However, this does not result in any savings potential for your clients. “You are not allowed to certify a contract that you have drawn up as a lawyer as a notary,” says lawyer notary Heise. This also applies within the office: “My colleague is also not allowed to notarize my contracts,” she says. Clients must therefore always look for a notary who is independent of their lawyer. In this respect, there can be no discount on a combination of legal and notary services.
In very simple circumstances, a lawyer can be dispensed with in a prenuptial agreement. However, if one partner decides to hire a lawyer, the second partner should not skimp on personal advice from a second lawyer. “If a prenuptial agreement is good, intensive advice is no longer needed in the event of a crisis and the divorce becomes cheaper,” says Becker.
What happens when there is a separation of property?
As with the community of gains, the separation of property is also a legally defined property regime. However, this cannot simply be chosen during the marriage at the registry office, but requires a notarial contract - with the same fees described above.
In the event of a separation of property, the assets do not only remain separate during the marriage. Even in the end there is no compensation. However, if the marriage ends with the death of a partner, the separation of property has tax disadvantages: While the longer-living spouse only has a tax allowance of 500,000 euros in the case of the separation of property, an additional tax allowance is available for the equalization of gains.
