Marital Community Property Regimen
The German marital community property regimen governs the allocation of property during marriage and in case of divorce. In principle, after marrying spouses legally reside in a marital community property regimen of accrued gains. The law also alternatively provides for various other methods such as division of property, joint property and the German-French model of community property of separate estates. The notary can explain the impacts of these marital property schemes as they pertain during the existence of a marriage as well as in cases of marriage break-ups including options for modifying their impact.
In this manner, for example, the parties can in the framework of a marital agreement modify the marital property scheme of accrued gains that would otherwise apply in case of divorce (such as, for example, by excluding any gains from shares, specific real estate property or for any increases in the value of inherited property). A complete exclusion is also a possibility in case of divorce or death.
Following a detailed consultation with Notary Delia Reinders, the partners can then determine their marital property scheme based on their individual circumstances and can draft a marital agreement that best fits their individual needs. In such cases, the following factors are particularly important: task distribution between the marriage partners, any mutual children, respective income and assets as well as individual notions regarding further future plans. Due to an ever- increasing number of ‘‘international marriages’’ and queries pertaining to international law and laws applicable to specific situations, questions of international law and choice of law provisions have become a central point of consultations
Alimony & Support
A marriage agreement regulates possible claims to alimony and support in case of separation or divorce including, in particular, questions relating to mutual children and the elder care of the spouses. The specific amount of any individual claims to alimony and support will depend on the living standard maintained during the marriage and on individual income following separation.
Individual marriage agreements can deviate from applicable statutory provisions. For example, it is possible that a potential claim to alimony or support can be reduced or extended in its amount and/or duration. Since alimony and support agreements can have far-reaching implications, a consultation with a notary is indispensable, whereby the task of the notary is to locate suitable alternatives.
In case of divorce, German law provides for an automatic equalization of pension rights acquired during the marriage, the so-called pension rights adjustment. Any rights acquired in regard to any private or government statutory pension schemes are thereby each divided equally. The pension rights adjustment will take place regardless of whether those entitled to a pension rights adjustment have any high value assets or if they are already separately insured via any life insurance not included in the pensions rights adjustment.
Such provisions apply in particular to business owners so as to prevent injustice. In other individual cases, however, excluding or modifying the pension rights adjustment can be useful.
During a consultation, your notary will gladly explain to you the risks involved in such agreements and will provide viable alternatives for protection.
SEPARATION AGREEMENTS AND DIVORCE SETTLEMENTS
In cases when a marriage has already failed, or where married couples think that separation is highly likely, the stresses involved are not only highly emotionally taxing but can also evoke a multitude of legal and economic questions and problems. An amicable resolution not only spares couples grueling and expensive confrontations mediated by their lawyers, but it also enables a faster and more cost-effective means of finalizing the divorce proceedings. Finally, former spouses usually tend to favor amicable resolutions over court decisions.
Notary Delia Reinders will advise you regarding all open questions and, as an impartial consultant, will support you in matters such as consultations and negotiations with the attorneys involved and the conclusion of a balanced solution. In a notarized separation or divorce agreement, you can then individually determine the specific agreements reached.
FA multitude of laws apply to marriages and registered civil partnerships as well as in cases of separation or divorce. These provisions generally do not apply to unmarried couples, which can lead to certain undesirable effects in non-marital partnerships. This applies particularly when as a result of many years of life spent together mutual investments are made in a house or a car or when mutual children are born and, consequently, one of the partners must limit his or her professional endeavors. As partners in a non-marital relationship, you should therefore consider which provisions would apply to your cohabitation and which would apply in case of a possible separation. Such provisions can be made legally binding in a notarized partnership agreement.
In that regard, one should also consider the distribution of assets after the death of one of the partners as well as consider the provisions for protection of the respective other partner at that time. Apart from marital relationships and civil life partnerships, unmarried partners are not legally eligible to inherit from one another. Therefore, regular provisions should be made for protection in case of death.
When no significant facts speak against doing so, both partners’ rights to property will be equally recognized under civil law if both contributed to the financing of the joint real estate. In the respective partnership agreement, provisions can also be made regarding liability, termination and conflicts as well as for cases of death. In the event of the death of one partner who is the sole owner of the real estate, it should at least be ensured that the surviving partner is protected by a life estate or by other lifetime usage rights to the extent that he or she has not already been made an heir by prior testamentary disposition. Should the partner who is not the owner of the real estate have contributed towards its financing by paying interest and amortization then that partner should have a right of rescission or some other type of compensation available in case of separation.
PATERNITY, CUSTODY, ADOPTION
The many duties of a notary also include consultations regarding laws and provisions concerning parent-child relationships, in particular pertaining to notarization of custody declarations, acknowledgments of paternity, corresponding approvals thereof, applications of those willing to adopt and the respective consent forms. The task of the notary is to inform the parties concerned about the far-reaching legal ramifications of their declarations and to duly record their declarations.
In cases when parents are unmarried when their mutual child is born, they can make use of a notarized custody declaration to declare that they share parental responsibilities.
In cases where there is no biological relation, for example, a female marrying a male with children, joint parental responsibilities are first established after the child has been adopted.
The decisive factor in such instances is the welfare of the child. Moreover, a genuine parent-child relationship must be present between the adoptive parent(s) and the child. When the required consent forms are presented, the adoption will be applied for in a notarized form, and the judge determining guardianship will pronounce the adoption. The adopted child will receive the status of a legitimate child and thereby all rights and duties towards his or her adoptive parents.
Since recent amendments were made to German civil partnership law, it is possible to adopt stepchildren. The civil partner can adopt the biological child of his or her partner brought into the civil partnership or born during the partnership. This is intended to improve the child’s status. The civil partner assumes the responsibility of childcare as well as the obligation to contribute to the child’s upbringing. The child becomes entitled to support from the adoptive parent and to hereditary title. The rights of the other biological parent are protected. An adoption is only possible when the other biological parent consents.
For their services, notaries charge fees subject to a legally defined fee system (GNotKG) exclusively determined by the commercial value of the subject legal matter. The same agreement will cost the same amount regardless of the notary. The notary fees for a marriage agreement, for example, include not only the notarization but also all consultations, drafts and the complete processing of a contract. Many declarations subject to notarization within the category of parent-child relationships are by law free of charge.
The notary will gladly provide information regarding the anticipated costs of the proposed agreement.