Prenuptial agreements or marriage contracts are neither particularly popular nor do they enjoy a good reputation: they are widely regarded as unromantic. What is disregarded in the process: When you get married, you automatically sign a contract. No matter whether you want to or not. Marriage is a contract. So why not at least (help) decide what should be in the contract?
Who should consider a marriage contract?
Many people who marry do so out of love. But marrying someone is not only a declaration of love. Some people marry out of financial reasons or because they want to know that they will be taken care of. Legally speaking, this it is only party possible to achieve (financial) security through marriage. It is often not known that in Austria the principle of fault still applies. This means that in the case of divorce one is only entitled to spousal support under certain circumstances. Basically, the court has to establish that the other spouse is to blame for the breakdown of the marriage. For example, if one spouse has been unfaithful and this has led to the breakdown of the marriage, or if one spouse has inflicted violence or severe mental suffering on the other spouse, insulted him or her or persistently refused sexual intercourse for no reason, this can have financial consequences.
In reality, this at fault divorce, leads to mudslinging and disappointment. Those who cannot prove that the other person is “to blame” may go away empty-handed in terms of adequate post-marital support. No matter how long the marriage has lasted and no matter how much unpaid care work such as childcare, care for relatives in need of care, housework, etc., a person has done.
When does a prenupt make sense?
In fact, prenuptial agreements are often pushed by the economically stronger party in order to protect themselves in the event of a divorce. This is legitimate and not reprehensible. Especially in the case of very different income situations or (real estate) assets, a prenuptial agreement can make sense. In principle, each person keeps inherited or contributed assets also in case of a divorce. It can still make sense to contractually stipulate who contributes what and how it is to be handled in the event of divorce. However, if you are too eager to protect yourself, you do not just risk alienating your better half. If the other party is to be left completely empty-handed, the marriage contract may be effectively contested. An absolute no-go is to put the partner under pressure or even coercion to sign the contract. Surprising a person who is nine months pregnant with a walk to the notary one day before the wedding is not a good idea. Prenuptial agreements mainly lead to a good agreement that also “holds up” in court if they are as balanced as possible. If, casually put, according to the prenuptial agreement one party cannot even take their own socks in the event of a divorce, this will not hold up legally. It also makes sense to re-evaluate the situation every few years. The income situation can change and new realities of life can arise, which should be included/displayed accordingly in the prenuptial agreement.
a prenupt as a love declaration?
To emphasize the charming side of the prenuptial agreement: The prenuptial agreement could be used to craft a fair solution. In many families it is the case that one person devotes some time to raising or caring for children. For this time, during which one person does no paid work and thus also acquire no pension entitlements for this period, no-fault support support could be agreed upon, for example. It would have the advantage that no PI reports would have to be presented in court and a solution could be reached that is predictable and fair for all parties involved.
In my opinion, the prenuptial agreement needs a change of image. Thanks to a prenuptial agreement, future spouses can regulate how the joint money can be distributed fairly after a divorce. Without any mud-slinging. If that’s not a great proof of love!
