Dispute of the day when divorce threatens existence
The model on which the legal regulations are based is the classic housewife marriage: one of the partners deserves, the other takes care of the household and children. This division of roles has largely become obsolete today. Nevertheless, it would go too far to dismiss the provisions of the BGB as antiquated in general.
"The community of gains is a good choice for many couples," says lawyer Peyerl. "As a rule of thumb, if neither of the two partners has assets that need to be assessed using an expert opinion, a marriage contract is usually not necessary."
The reason: at the latest when children come, even in modern marriages it can usually not be avoided that one partner gives the main earner while the other first puts family life in the foreground. The losses suffered by the latter level out through the equalization of profits. In the event of a divorce, he receives his share of the gainful partner’s profits.
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"Even in the case of double-income marriages, the community of gains certainly leads to results that are in line with interests," says Peyerl. “If both partners work, the difference between the two gains will naturally be smaller; the compensation payment drops. ”And the legal standard solution has another advantage that should not be underestimated. Peyerl: "If the marriage does not end with a divorce, but with the death of a spouse, the compensation of profits usually takes place through a flat-rate increase in the legal inheritance of the survivor – and the is fortunately tax-free. "
Nevertheless, there are constellations in which a marriage contract is almost mandatory. Like in the case of Heike and Florian Flehmig. “The legal property regime is unmanageable for entrepreneurs risksWarns Peyerl. Whoever had to pay his ex-partner half of all the profits made during the marriage could, if at all, only do so with considerable pain. Sometimes the company even had to be sold to meet the requirements.
The legal property regime is one for most married couples quality Choice. However, entrepreneurs would do well to secure themselves contractually. The same applies to couples where one or both of them have substantial property assets.
However, the following also applies: Anyone who decides to go to the notary must act with a sense of proportion. Because even a marriage contract does not guarantee a clean and quick divorce. The reason is the case law of the Federal Court of Justice. It says: Marriage contracts that unilaterally burden a partner excessively are immoral and therefore ineffective (BGH Az. XII ZR 265/02). In order to ensure that the individual clauses actually hold, experts recommend that the contents of the agreement be checked regularly and – for example after the birth of a child – adapted to changing living conditions.
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