When you get married, you enter into a real contract. Marriage is a contract. Even a white dress or a wedding cake does not change that. Many people only realize what mutual rights and obligations there are in a marriage when the relationship takes a turn. If you want to get married but still want to have a say in what should apply in the event of a divorce, you have the option of concluding a marriage contract, i.e. an advance agreement for the event of divorce like a prenuptial agreement.
What can be written in a prenuptial agreement in Austria?
Although legal provisions can be adapted through a prenuptial agreement, not everything is legally possible. In certain areas, so-called mandatory law applies. The fundamental characteristics of a marriage shall not be completely undermined. According to the motto, if you do not agree with the basic idea of a marriage, you should simply not get married. For example, it is not possible to agree an open marriage in a legally binding way. Also clauses, such as obligations to be available for marital sex at a certain frequency, etc., would not be binding or enforceable in Austria.
Who can benefit from a prenuptial agreement in Austria?
Practically in Austria, settlements for post-marital support and the division of marital property are often concluded in a prenuptial agreement. Often prenuptial agreements are initiated by the economically stronger part. Prenuptial agreements do not have to be fair and balanced. But if one party is suppose to walk away with nothing in the event of a divorce, the agreement may not hold up in court. If the disproportion is too great, courts can adjust or even annul the entire contract. Fairness in contract negotiations is therefore advisable – also in the own interest. Prenupts also offer the possibility to secure the person who is mainly taking care of the household and children- or to find a fair solution in case of divorce. This can be advantageous for both sides in the light of the fault principle applicable in Austria. The person who earns more can calculate and plan in advance what to expect financially in the event of a divorce, while the other person does not have to fear for his or her existence
Essentials of a prenuptial agreement in Austria
In the event of divorce, marital assets, i.e. marital savings and marital property, must be divided. It is advisable to make agreements in a prenupt about how marital property or savings should be divided in the event of a divorce. It is often agreed in prenuptial agreements that savings are to remain with the spouse in whose name they are in. However, it should also be kept in mind that the person who stays home with the kids will have far fewer opportunities to build up his or her own savings than the higher-earning spouse.
In addition, you should consider in advance how you would like to deal with the marital home later on. A frequent topic of dispute is also post-marital support, which is why advance arrangements on this can be peace-building. In the event of separation or divorce, it is possible to set maintenance at a certain amount or even a percentage of the income of the person obliged to pay maintenance. Inheritance agreements may also be useful, especially in connection with real estate and homes.
Especially in the case of marriages where two persons have different nationalities or where longer stays abroad or international changes of residence are planned, agreements on jurisdiction and choice of law are highly recommended.
Arrangements about joint or future children
Repeatedly, people wish to avoid future custody wars with a prenuptial agreement and establish regulations on custody and contact rights for the future. However, this is not so easy from a legal point of view. When it comes to custody and visitation, it is always primarily a matter of the best interests of the child. That is why it is not possible to make binding regulations on these issues in advance because it must match the best interests of the child. If parents nevertheless make arrangements on custody and contact law issues in a marriage contract, these are understood as (non-binding) declarations of intent