Marriage for all - marriage contracts for all!!!

The introduction of marriage for all in October 2017 was a significant step towards legal equality for same-sex couples. Previously, they had only been able to enter into a registered civil partnership together, which was established in 2001. The latter can now be converted into a marriage; new registered civil partnerships can no longer be entered into.
It should not be forgotten that "marriage for all" not only means equal rights, but also equal obligations for the spouses, particularly in the context of marital solidarity. These obligations are largely regulated and predetermined by law. In addition to the consequences under inheritance law, this applies, among other things, to spousal and child maintenance as well as the equalisation of pension entitlements earned during the marriage as part of pension equalisation. Furthermore, statutory regulations in connection with the division of property also apply without any conscious action on the part of the spouses, as the law assigns a marriage without a marriage contract per se to the legal institution of the community of accrued gains.

As unromantic as the idea may seem at first glance, it makes perfect sense for same-sex couples to be aware of these obligations at an early stage and to be prepared for their potential occurrence.

In this context, the fundamental question arises as to whether the legal consequences of marriage, which are in principle prescribed by law, provide a sensible solution, especially with regard to same-sex couples. The spouses always enter into a "contract" when they enter into marriage: either on statutory (changeable) terms or on their own (marriage contract) terms.

In this respect, it should be noted that the family law regulations in the German Civil Code originate from an era in which the classic family model of the one-earner marriage with many children was practised almost exclusively. Accordingly, the legislator was also keen to capture and regulate the normal case found in reality.

Over the course of time, however, marriage has undergone a development away from this classic understanding of roles towards one characterised by self-responsibility and equality.
For example, the number of dual-earner marriages plays a significant role in the total number of marriages concluded. As a result, the legal provisions are likely to be regarded as outdated, at least in part, with regard to the marriage primarily practised by heterosexual couples. This applies all the more to a section of the population that was not intended to be covered by the effects of the law at the time it came into force. For same-sex couples in particular, the childless cohabitation of two working people is the absolute rule.

However, if both spouses are able to pursue their own career paths and accordingly do not suffer any marital disadvantage due to raising children or other marital arrangements, then there is no need for statutory regulations regarding maintenance and pension equalisation - or at least not in the form regulated by law. Rather, the interests and needs of the individual spouses should be taken into account.

The legal means that the law provides for drawing up and establishing a concept tailored to the individual joint life plan and specific needs is the conclusion of a marriage contract. In this respect, too, there is no difference between heterosexual and homosexual couples.

Notwithstanding the concerns currently still expressed about the compatibility of same-sex marriage with fundamental rights, a corresponding contract is the optimal means of regulating the personal circumstances of the spouses in a legally comprehensive and transparent manner tailored to the individual circumstances.

The advantages inherent in the nature of the marriage contract are manifold:

Marriage contract rules originate from the consensus of the spouses, so that both parties can influence their content and conclude a valid agreement by mutual consent and in a fair manner.

This allows the couple to flexibly plan for all eventualities in advance. This approach can minimise stress, especially in the event of the marriage breaking down, if arrangements have already been made and joint arrangements do not have to be made at this emotionally stressful time.

This makes it easier to plan the marriage and any separation that may occur. A detailed and specifically regulated marriage contract offers the spouses a clear and understandable structure. Knowing that they are prepared for the worst-case scenario gives the couple additional security and peace of mind for their future life together. Financial issues in particular can be clarified well in advance and no longer burden the marital relationship. Accordingly, it is also an interesting option if the spouses earn significantly different amounts of income or if one of the spouses is a business owner. As part of the marriage contract, certain assets can be excluded from a possible equalisation, thus protecting the existence of companies, for example. However, in order to cover a large number of possible cases, the statutory provisions are formulated as abstractly and broadly as possible.

Finally, it should also be borne in mind that the provisions of civil law, as well as the case law referring to them, can be subject to (political and social) change and, accordingly, unforeseeable changes can sometimes occur over time. In contrast, the marriage contract, which is based on the contractual agreements of the spouses, has a much higher degree of permanence.

In simple terms, the (future) spouses are not ultimately faced with the question of whether they want to conclude a marriage contract or not. Rather, they have to decide whether they want to subject their marriage to the generally applicable statutory provisions or conclude an individually regulated marriage contract. In any case, the spouses must base their marriage on one of these two legal sources as the legal foundation.

Based on the above considerations, it makes perfect sense to consider concluding a marriage contract to protect and safeguard yourself as far as possible. However, the legal possibilities and limits that need to be considered when concluding a marriage contract are multi-layered and complex. In view of the actual significance and scope, it is urgently advisable to seek comprehensive legal advice in advance. Only on the basis of a comprehensive analysis of the actual living conditions on the one hand and taking into account the legal framework on the other can it be ensured that all eventualities are considered and, if necessary, appropriate provisions are included in the marriage contract.

Lawyer Frank Schumacher

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