The prenuptial exclusion of the equalisation of accrued gains does not necessarily have to impact the validity of a prenuptial agreement.
GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: In proceedings before the Federal Court of Justice (BGH), which concluded with a judgment on 21 November 2012 (Az. XII ZR 48/11), the claimant desired information concerning her husband’s assets on account of the determination of alimony and the equalisation of accrued gains. Before the marriage ceremony, both spouses had agreed in a prenuptial agreement on the separation of property. Moreover, they had excluded post-marital subsistence as well as the adjustment of pension rights and included a severability clause in the agreement.
The BGH is of the view that the equalisation of accrued gains is most amenable to a prenuptial agreement.
However, the exclusion of the post-marital subsistence and the exclusion of the adjustment of pension rights are to be assessed differently. The exclusion of the post-marital subsistence cannot at least be maintained, since the spouses had children after the conclusion of the prenuptial agreement. A complete waiver of subsistence would therefore apply to the child support, which, as with public policy, would seem to be incompatible with the subsistence agreement.
The exclusion of the adjustment of pension rights is also not to be considered consistent with public policy, since the claimant was unemployed at the time of the conclusion of the prenuptial agreement. It was noticeable as early as the conclusion of the prenuptial agreement that such an agreement could have serious consequences for the claimant in the event of a divorce.
Who does not think pre-emptively before the marriage potentially risks the assets which he/she brings into it, as these assets are also included in the calculation for the equalisation of accrued gains in the event of a divorce. This can be avoided with a prenuptial agreement.
A lawyer active in the field of family law can advise on how to secure oneself with a prenuptial agreement against the possibility of a divorce.