With and without a prenuptial agreement: who owns what after the divorce?

Bill and Melinda Gates' marriage is on the rocks - divorce follows. It's unfortunate, but it happens from time to time. Even in this country. Read here what applies or does not apply in such cases.

When two people get married, they share everything. At least that's what they often say. It doesn't occur to them to jeopardize the romance with a marriage contract. And then there are others who want to make provisions for the bad times while the good times are still good. They insist on a prenuptial agreement that stipulates exactly which property remains with whom in the event of divorce.

But how do you do it right? And is a prenuptial agreement really a romance killer? Two experts explain.

"It's a widespread misconception that the wife's and husband's assets become joint assets upon marriage," says Jürgen Krüger, notary and specialist lawyer for family law. Assets that were owned by the woman before the marriage remain hers as the wife. The same applies to the husband. This property is not taken away from the parties even in the event of a divorce. So "yours" and "mine" do not simply become "ours", even without a marriage contract.

However, when a man and woman marry, they enter into a so-called community of accrued gains. This means that the assets that the couple accumulate over the course of their marriage must be divided equally in the event of divorce. According to the law, the partner with the greater increase in assets is obliged to pay compensation, i.e. must give the other a portion of their assets.

Assets are considered as a whole

"This actually leads to pretty fair results," says Eva Becker, a family law specialist and board member of the German Bar Association (DAV). After all, the constellation in a partnership is often like this: One person takes a step back professionally to raise children or take care of the household, while the other pursues a career. With the compensation, the financially disadvantaged partner is not left destitute after a failed marriage.

Incidentally, it is completely irrelevant whether the increase in assets comes from income, capital investments or the increase in value of a property. Which capital has been added is determined in the overall view and must always be balanced accordingly. Possible inheritances made by spouses in the course of the marriage are not subject to the gain. However, increases in assets resulting from the inheritance are - such as the increase in value of an inherited property, says Jürgen Krüger.

The equalization claim is always a monetary claim, says Krüger. This means that the car purchased and paid for by the wife does not automatically belong half to the husband. However, if the car is the couple's only increase in assets during the marriage, the wife would have to pay half of the value to the husband as part of the divorce.

In the event of a divorce, it is not certain that the wealthier of the two partners is actually liable for compensation. Krüger gives an example: a husband starts the marriage with assets of one million euros, his wife has nothing. On the day the divorce petition is served, the wife has assets of 200,000 euros, while the husband has lost a quarter of his initial million over time - leaving him with 750,000 euros. So although the woman objectively has fewer assets, the gain is exclusively hers. Her husband is therefore entitled to half of her assets, 100,000 euros.

Marriage contract especially for entrepreneurial activity

"If you don't believe that this leads to a fair result, you can draw up a prenuptial agreement," says Becker. This can be used to modify the community of accrued gains up to complete separation of property and thus exclude the equalization claim. Then, even in the event of divorce, everyone keeps what they have gained during the marriage.

According to the two experts, this is particularly popular with married couples where at least one of the couple is self-employed or a partner in a company. Otherwise, their professional livelihood could also be at stake in the event of a divorce. "This is because the company is included in the equalization of gains," says Becker. A marriage contract can prevent this if it has been agreed to exclude the company.

The marriage contract can also play a role if, for example, one of the two partners inherits the family home in which they live together. Over the years, the property can increase significantly in value. If you want to avoid having to compensate for this increase in value in the event of a divorce, you can exclude the property.

A marriage contract is also subject to certain requirements

A marriage contract, which must be notarized to be effective, is therefore not a romance killer, but an expression of individual precaution, says Krüger. Such an agreement should never lead to one spouse becoming suspicious. Rather, the contract ensures that the partners do not argue with each other for years if things do not work out, explains the Vice President of the Schleswig-Holstein Bar Association.

Incidentally: "A marriage contract is subject to the so-called content and balance check at every stage," says Jürgen Krüger. This means that the agreement must not lead to one of the partners being unreasonably disadvantaged. Even a contract that was effective at the time of the marriage does not have to remain effective for all time. According to Krüger, if the contract that was once drawn up becomes a unilateral burden on one partner during the course of the marriage, it can become ineffective and no longer be valid upon divorce.