Divorce convention in advance - is that possible?

Can the spouses settle the consequences of a possible divorce in advance?

Yes, with an anticipated divorce agreement (also known as a "divorce agreement in advance" or "pre/postnuptial agreement"), the spouses can make binding arrangements for the consequences of a divorce before or during the marriage without a specific intention to divorce.

What can be regulated?

Although the general freedom of contract applies between the spouses, they are restricted in terms of content insofar as the regulation of child matters (parental care, custody, maintenance, etc.) is not left to them, but to the court ex officio. On the other hand, they are free to decide on post-marital maintenance and the division of assets within the statutory limits.

Formal requirement?

The anticipated divorce convention is not subject to any special formal requirements, although written form is recommended and customary for reasons of practicability and proof. In practice, it is often integrated into a publicly notarized marriage contract. Subject to the reservation of overreaching, defects in intent or content, the agreement is immediately binding and therefore cannot be revoked unilaterally by either spouse once it has been concluded.

Approval by the court?

In the event of divorce, the legal validity and enforceability of the anticipated divorce agreement is also subject to judicial review and approval. Court approval requires a review of the formation of the will as well as a substantive and formal review of the agreement.

The court examines whether there was free will and careful consideration to enter into the agreement at the time it was concluded. 

In terms of content, the court examines whether the anticipated divorce settlement is not manifestly unreasonable. For this purpose, it takes into account the current income and financial circumstances of the spouses at the time of the judgment. In other words, the agreement will not be approved if it is clearly and obviously disproportionate in relation to the statutory regulation (or what the court would decide based on the law). If there is no such obvious disproportion, the court must review the anticipated divorce settlement.

Formally, the court examines the clarity and completeness of the agreement.