Declare waiver of maintenance in the marriage contract

In marriage contracts or agreements on the consequences of divorce there is usually an agreement on maintenance. Ideally, the one who waives in the event of divorce may be entitled to maintenance, in favor of the spouse, at least from his perspective on financial support. However, there are limits.

Prenuptial agreement before the divorce is notarized

• The law only allows the spouses to come to an agreement on the maintenance obligation for the period after the divorce (Section 1585c BGB). In practice, the range of agreements is very wide. It ranges from a mutual complete renunciation (childless double-earner marriage) over the limitation of Payments from a certain maximum amount to detailed arrangements for various Life situations.
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• If the agreement is made before the final divorce, it must be notarized or recorded in court. In this way, the socially weaker spouse should not feel pressured to be divorced just in this case or to let the partner buy the maintenance waiver from them. The renouncing spouse must be aware that he has his future at an early date Agreement can usually not overlook and must count on it, perhaps in need of social assistance will.

Waiver only possible for the post-marital period

• The waiver of maintenance is therefore only permitted for the period after the divorce. A maintenance waiver during the existing marriage or for the period of separation remains excluded until the divorce.
• If any maintenance claim has been excluded in a marriage contract, the exclusion for the separation maintenance remains ineffective. In this case, the dependent spouse can always request benefits.


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Maintenance in times of need is indispensable

• In principle, it can be agreed in a marriage contract that the parties mutually renounce post-marital maintenance in any form and in all circumstances, including in emergencies. However, formulations of this kind are often problematic. It must be clearly regulated whether the legitimate spouse waives even if he does not If you are at fault, you fall ill, find yourself in financial distress, have to be cared for or have a child together has to look after. Maintenance agreements are subject to the condition that the circumstances remain the same.
• Such a marriage contractually agreed waiver can be ineffective if an unfit for work or spouse who is not wealthy would be blatantly disadvantaged financially after the divorce and apply for social assistance would have to. This applies in particular if children have to be looked after together. If so, at least childcare maintenance should be excluded.
• The maintenance waiver can also be cushioned with a severance payment to the dependent spouse. The higher the financial compensation, the sooner the agreement will last.

In view of the complexity and scope of such agreements, a maintenance waiver should always at least be accompanied by a lawyer and / or notarized.