Family Law
Family law in Cologne – your notary for prenuptial agreements & divorce settlements
Particularly in the area of family law, it is evident that a lack of regulations in the form of a marriage contract can have devastating and unintended consequences in an emergency.
As unpleasant as it may be to deal with a marriage contract at the beginning of the marriage, i.e. regulations in the event of the failure of the marriage or regulations on the succession of property at a young age: it is shown time and again that nasty surprises are avoided by timely regulations.
The legislator stipulates that a marriage contract must be notarised in order to be valid. Consequently, notary fees for prenuptial agreements are also incurred. The amount of these costs is laid down in the Law on Court and Notary Fees (Gerichts- und Notarkostengesetz, GNotKG). The basis for calculating the notarial costs for prenuptial agreements is the so-called business value.
For more information on family law, see the following points:
The same applies to drafting in the case of will or inheritance. As you may have experienced yourself or in your circle of acquaintances, all parties involved, including the testator, assume a certain succession. The surprise is all the greater when the probate court comes to a different decision. By concluding a notarised will or a notarised contract of inheritance, you can be sure that your will will be complied with upon your death. Last but not least, the heirs also have an advantage. A will or inheritance contract notarised by a notary usually saves the heirs from having to apply for a certificate of inheritance (an official certificate of succession), which often takes several months to be issued.
Further information on the law of succession can be found at the following link:
The notary in Cologne for family law will of course be happy to advise you at any time on your questions and wishes.
Marriage contract
If the partners choose the path of marriage, the corresponding legal regulations apply from the day of the civil marriage. Particularly in the area of matrimonial law, it is evident that with timely provision through a marriage and/or inheritance contract, protracted disputes can be avoided. Especially in the case of mixed-national marriages, it is advisable to conclude a marriage contract, as this ensures the application of the same marriage and family law in each home country. The marriage contract can be concluded both before and after the marriage.
By concluding a marriage contract or life partnership contract, potential conflicts can be identified at an early stage and, with our support, brought to an amicable settlement. Once the marriage has broken down, it is often no longer possible to agree on these points.
A prenuptial agreement is particularly useful for self-employed persons and entrepreneurs. This is because assets such as shares or real estate are also included in the calculation of the equalisation of gains. This may cause economic difficulties for an entrepreneur who has to pay out half of his or her gain to the partner, so that, for example, individual asset items can be excluded from the equalisation of gains. Of course, a concluded marriage contract can still be amended subsequently and also adapted to the corresponding living conditions.
The law attaches various consequences to marriage, some of which take effect during the marriage and some after it has ended. They can essentially be classified under the following headings in the marriage contract: property status, maintenance and provision for old age.
The prenuptial agreement regulates in particular:
The matrimonial property regime
Unless you make a marital agreement, you are married under German law in the property status of the community of gains. This means that although each spouse has his or her own assets, the increase in assets during the marriage is determined separately for each spouse when the marriage ends. The spouse who has gained the most must give half of this to the other spouse. However, gifts and inheritances are only taken into account with their increase in value during the marriage; the substance as such remains irrelevant.
As an alternative to the community of accrued gains, the legislator offers the separation of property, i.e. there is no equalisation of assets at the end of the marriage. However, this also entails a disadvantage. In the event of death, the surviving spouse receives 1/4 of the estate as a lump-sum equalisation of gains – completely tax-free! In the case of separation of property, this possibility does not apply.
It therefore makes sense to combine the advantages of the two matrimonial property regimes. The solution is the modified community of gains, according to which the legal matrimonial property regime basically remains in force, but certain assets or groups of assets (e.g. real estate) are not taken into account when determining the gain if the marriage is divorced. In the event of the death of one spouse, the normal statutory regulation applies, i.e. the surviving spouse receives 1/4 of the estate as a tax-free lump-sum equalisation of gains. The matrimonial property regime of community of property only plays a role in a few exceptional cases.
The pension equalisation
Within the framework of pension equalisation, the differences in pension provision in the event of divorce between the spouses are eliminated, so that in principle the same pension entitlements accrue for each spouse during the marriage period. This legal regulation can be restricted, cancelled or extended by means of a marriage contract or sequential divorce agreement. Whereas until a few years ago prenuptial agreements that completely excluded pension equalisation were the order of the day, this exclusion is now no longer permitted without restriction in cases where one spouse suffers marital disadvantages in his or her personal pension provision. This is particularly the case if one spouse gives up or restricts his or her professional activity in order to raise joint children or is unable to acquire his or her own old-age provision due to his or her age or illness. In all these cases, it may no longer be possible to invoke the exclusion of pension equalisation.
Post-marital maintenance
The same can be said for post-marital maintenance as for pension equalisation. The complete waiver of post-marital maintenance is only permissible under very limited conditions. As a rule, maintenance due to the care of joint children, old age or illness can no longer be waived without restriction.
A checklist of information that you should have ready for the preliminary discussion with your notary can be found here.
For more information on notary fees for prenuptial agreements and divorce settlement agreements, see here.
Divorce agreement
Divorce hurts – and costs a lot of time and money. Provided you can agree on an amicable separation with your previous partner, this can save you a lot of time, money and trouble. By concluding a notarised Divorce Agreement by Notary Cologne, the basis for a cost-effective, quick and unencumbered divorce is established. Almost all points that would have to be decided by a judge can be settled by mutual consent through the divorce agreement. A court decision on the points contained in the notarial divorce settlement agreement is therefore basically unnecessary.
In order to prepare a divorce agreement, you should agree on the following points:
Equalisation of gains (in the case of a legal matrimonial property regime)
i.e. who receives which assets, in particular real estate; are equalisation payments to be made, if so, by whom and with which payment terms?
It therefore makes sense to combine the advantages of the two matrimonial property regimes. The solution is the modified community of gains, according to which the legal matrimonial property regime remains in principle, but certain assets or groups of assets (e.g. real estate) are not taken into account when determining the gain if the marriage is divorced. In the event of the death of one spouse, the normal statutory regulation applies, i.e. the surviving spouse receives 1/4 of the estate as a tax-free lump-sum equalisation of gains. The matrimonial property regime of community of property only plays a role in a few exceptional cases.
Postmarital maintenance
i.e. who receives maintenance and for how long.
Please note that the person who does not take up or cannot take up his or her own gainful employment because of looking after joint children or because of old age or illness can in principle no longer waive these maintenance claims without restriction. Because of the maintenance claims, the person obliged to pay maintenance must submit to immediate enforcement in order for the court to recognise this arrangement.
Pension rights adjustment
i.e. the pension entitlements.
If an arrangement is made in this regard, the court must examine the fairness of this arrangement. Here, too, it applies that the person who was prevented from forming his or her own pension entitlements due to the care of joint children, old age or illness cannot, in principle, waive them without restriction.
Custody and access rights of joint children
Distribution of household effects
As notaries for family law, we are happy to be at your disposal for a personal meeting to prepare your prenuptial agreement and/or divorce settlement. The draft of the prenuptial agreement/divorce agreement will of course be prepared in cooperation with your lawyer.
A checklist of the information you should have ready for the preliminary discussion can be found here.
For more information on the notary fees for prenuptial and postnuptial agreements, see here.
