It cannot be denied that marriage contracts are concluded in order to protect oneself. Prenuptial agreements are often requested before the marriage, and usually by the financially stronger party. The idea of a prenuptial agreement is basically a good one, namely that you agree on a solution in advance, while you still get along.
Marriage and contract – a contradiction?
Marriage itself is a contract. Unfortunately, this knowledge is not particularly widespread. It would be desirable if those wishing to marry were given at least a brief legal explanation. In everyday (business) life, it seems unthinkable to enter into a contract that is so difficult to dissolve and has massive consequences without knowing the terms of the contract. However, this is often the case with marriage. People marry, in the best case a love of their life, out of hopeful and romantic motives.
The fact that many marriages fail is successfully suppressed or people assume that this failure will not affect their own marriage. Furthermore marriage comes with rights and obligations that have little to do with love but a lot to do with the law is often unknown. The fact that, in the event of a divorce, one’s own savings are supposedly shared with the spouse or, in the worst case, that maintenance must be paid to the other person for an indefinite period is also unknown.
Marriage contract
Marriage in itself is a contract. With a prenuptial agreement, you can at least have a say in what is written in the contract. A prenuptial agreement can be concluded at any time before the wedding, but also afterwards. A prenuptial agreement can be used to adapt legal provisions. But you are not completely free in the formulation of the contract. In certain areas, so-called mandatory law applies. A marriage contract does not necessarily have to be fair, but a great imbalance is not advisable, regardless of the perspective. Apart from the fact that it does not make sense to give up your own life by means of a marriage contract, a grossly unfair marriage contract can also be “contested”. If the imbalance is too great, the courts can make adjustments.
Frequent content of a prenupt
A prenuptial agreement will often contain provisions on what should happen to marital assets or savings in the event of a divorce. Separation of property only applies by law during the marriage. This regularly leads to confusion. In the event of divorce, there is property and assets accumulated during the marriage are to be divided. However, something different can be agreed in a marriage contract. Marriage contracts often stipulate that savings should remain in the name of the spouse even in the event of divorce. In other words, separation of property even in the event of divorce. It is important to take into account the couple’s intended lifestyle. For example, if the wife is to work mainly outside the home and the husband is to devote himself mainly to childcare and housework, he will not have as many opportunities as the wife to build up his own savings.
Since there is a lot of conflict about (post-marital) maintenance, also because of the principle of fault applies in Austria, provisions are often made in a marriage contract. Even in the case of agreements or a waiver of future maintenance (after the divorce), you are well advised to take into account the contingencies of your own life planning.
The Supreme Court did not want to answer the question of whether it was an abuse of rights to invoke a waiver of maintenance if the separation had been deliberately brought about beforehand, because the wife was unable to prove that she had left her husband in bad faith during the divorce proceedings. In the meantime, the marriage has been divorced due to equal fault.
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