If you watch a lot of American television, you might get the impression that prenuptial agreements (Americans call them prenuptial agreements or simply 'prenups') are the ultimate expression of distrust between two married couples. However, that's not the reality, and there can be good sense in making a prenuptial agreement.
When we advise on wills, it often also involves advice on prenuptial agreements, because in this way you can protect each other better than if you only protect yourself with a will.
Prenuptial agreements are for both those who are getting married and those who are already married. Below are three examples of what a prenuptial agreement can be used for.
It is of course legal to give your spouse a gift for Christmas, birthdays and other anniversaries, even if it is an expensive gift. It becomes more difficult when it comes to transferring ownership of larger items such as cars, boats and properties, but fortunately that was not for long. As of 1.1.2018, a gift marriage contract is no longer necessary.
Each case of gifts of this magnitude must – until New Year – be assessed individually, but the rule is that you cannot give your spouse gifts whose value is 'beyond your means'. For example, few people can afford to give away houses regularly, and therefore it will often be considered beyond your means if you want to give away part or all of the ownership of a property.
Therefore, it can save those who would like to transfer half of the house to their spouse, for example, some hassle if they can wait a few months.
If you have something that you own alone as separate property, but which you would like to share with your spouse, a marriage contract is required to give both parties ownership of the item in question.
A practical example is pension schemes, which are often legally separate property of the individual, and which your spouse therefore has no control over – even though this may not be a problem in everyday life.
If you want the pension scheme to be jointly owned in the future, so that both parties also formally have ownership of the pension scheme, a prenuptial agreement is required. It can then determine that in the future the pension scheme should no longer be separate property, but should be jointly owned.
As something new, two new forms of separate ownership are also being introduced – the two are called joint ownership and joint division.
In short, joint ownership means that spouses can agree and agree that a given part of the property shall be joint property, and that the rest shall be separate property. Joint ownership means – almost diametrically opposed – that a certain amount shall be separate property, with the rest then being joint property.
As mentioned above, prenuptial agreements often become part of our advice on wills, and this is because it can be easier and more appropriate to combine prenuptial agreements and wills when you need to ensure who gets what upon death.
Especially in families with children brought together, it can sometimes be a good idea to combine wills and prenuptial agreements if you want certain children to inherit certain things.
For example, if it is a question of grandmother's pearls, it is natural that it is the grandmother's biological grandchildren who should inherit them and not the children of the new spouse. The same could apply to a family business that you want to be inherited by your biological children.
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