Family law: Benefits of a prenup

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A prenuptial agreement may not be romantic, but it does afford protection to spouses and allow all the major issues – including, of course, financial matters – to be clarified when times are good.

We at the law firm MTR Rechtsanwälte admit that when couples are planning to tie the knot, separation is unlikely to be at the forefront of their minds. A prenuptial agreement is perceived by many brides and grooms-to-be as unromantic, but it is in fact a key component of planning for the future. If it proves unnecessary, all the better; if, however, it does prove relevant, the couple will have been able to clarify all the major issues early on while they were still on good terms. It is also possible to enter into an agreement after the marriage has taken place.

Recent years have seen drastic changes to society and traditional roles. Family law has not always been able to keep pace with these changes. In the absence of a prenuptial agreement, the marriage is subject to the standard statutory rules. Aspects such as the equalization of accrued gains, separation of property, alimony, and visitation rights can be addressed individually in the prenuptial agreement. The aim is to achieve a fair distribution among the spouses such that they both find themselves in a stable financial situation.

A prenuptial agreement can have far-reaching consequences, with its impact extending from the equalization of accrued gains, to maintenance and pension entitlements, through to succession. For this reason, a prenuptial agreement should always be fair and not unduly disadvantage either spouse, otherwise the agreement is contra bonos mores and therefore null and void, as in the case that came before the Oberlandesgericht (OLG) Oldenburg (Az.: 3 W 21/17 (NL)).

In the case in question, the wife had waived the equalization of accrued gains and a portion of her husband’s pension entitlement in the notarized prenuptial agreement. In addition, her right to maintenance was severely restricted. Following the death of her husband, she nonetheless asserted a claim for equalization of accrued gains that succeeded before the OLG Oldenburg.

The wife was said to have been unduly disadvantaged by the prenuptial agreement and her predicament exploited. The court noted that at the time she was an apprentice at the workplace of her husband – a man twenty years her senior – and also heavily pregnant. It went on to state that she must have anticipated that the marriage would not have taken place were it not for the agreement. Moreover, she was said to be at a significant disadvantage vis-à-vis her husband in terms of life experience and education at the time. The OLG declared the prenuptial agreement null and void, ruling that the couple had been living under the matrimonial property regime according to which accrued gains are held in joint ownership.

Lawyers with experience in the field of family law can offer advice.

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