An alternative to the marriage contract - the Liechtenstein foundation
Divorce is a deeply emotional and sensitive issue that is also inextricably linked to a number of legal aspects. These include the right to equalization of gains, post-marital maintenance and pension equalization.
In a marriage between entrepreneurs in particular, the legal consequences of divorce - especially the equalization of gains - can pose considerable additional challenges and, in the worst case, have consequences that threaten the existence of the family business. In extreme cases, this even has the potential to Liquidation of the companyfrom the sale of assets required for operations to the complete sale of the company in order to to be able to settle property law claims.[1]
In view of the key economic importance of family businesses in Germany[2] and the fact that almost one in three marriages ends in divorce, [3] preventive measures are essential - even if this is not a pleasant topic. One way of avoiding the existentially threatening consequences of a To prevent divorce, the prenuptial agreement is pursuant to Section 1408 (1) of the German Civil Code (BGB).[4] The marriage contract as such is subject to far-reaching judicial review in the event of a dispute.[5]
For these, however, there are No generally applicable criteria. The case law was accused of not following the fundamental decision of the BGH.[6] a clear dogmatic structure is missing.[7] Nevertheless, it cannot be denied that case law and legal literature have developed certain assessment standards for the review of the content of marriage contracts, which at least provide an initial orientation.[8]
Despite the developed assessment standards, case law in this regard remains difficult to assess due to the case-by-case approach. This is particularly evident with regard to the decisions of the BGH[9] on business marriage contracts. In both cases, the immorality and thus the overall nullity of the marriage contracts was established due to a one-sided distribution of burdens in the marriage contract, whereby the family work of the spouse was given central importance.[10] The specific effects of these decisions on the drafting of marriage contracts and their exact interpretation are disputed in legal scholarship.[11]
It should be emphasized that justice in individual cases inevitably leads to legal uncertainty.[12] However, since legal certainty is a central component of the principle of the rule of law in accordance with Art. 20 Para. 3 GG,[13] this circumstance requires critical consideration. Overall, the question arises as to whether the marriage contract as a common instrument in business marriages offers sufficient protection and security - especially in view of the potentially serious and existence-threatening consequences for the family business.
The Liechtenstein foundation due to its cross-border recognition an attractive Alternative to a marriage contract are. If you would like to find out more about the topic of cross-border recognition, you can find a separate blog post on this topic. Liechtenstein's flexible foundation law allows the founder to individually structure the fields of activity of the indirect corporate foundation - be it as a pure financial holding company or as an active management holding company.[14] Thanks to the perpetuation of the purpose, the foundation not only ensures a long-term legal connection between the family business and the foundation, but also secures the Preservation of the family business across generations.[15]
Conclusion
In summary, it can be said that the Liechtenstein foundation is a highly interesting and effective alternative to the usual marriage contract. Thanks to its cross-border recognition and the possibility of forward-looking structuring, it offers a High degree of legal certainty and can threaten the existence of Effectively averting the consequences for the family business in the event of divorce.
Sources:
[1] Olbrich, DBW 67 Vol. 2007, 243 (244f.); Münch, DStR 16/2014, 806 (811).
[2] Gottschalk/Hauer, in Family Business Foundation (2023), VII.
[3] Divorce rate in Germany until 2022 | Statista, (2024).
[4] Spleen, Handbook (2024), ch. 7, para. 45.
[5] BVerfG, judgment of 06.02.2001 - BvR 12/92 in NJW 2001, 957; BVerfG, decision of 29.03.2001 - 1 BvR 1766/92 in NJW 2001, 2248.
[6] BGH, judgment of February 11, 2004 - XII ZR 265/02 in NJW 2004, 930.
[7] Cook in: Bayer/Cook, Current Issues in Family Law (2007), 83ff; Münch, in Säcker/Rixecker/Oetker/Limperg, Münchener Kommentar zum BGB (2022), §1408, marginal no. 32.
[8] Münch, in Säcker/Rixecker/Oetker/LimpergMK-BGB (2022), §1408, para. 32.
[9] BGH, decision of 15.02.2017 - XII ZB 109/16 in NJW 2017, 1883; BGH, decision of 20.03.2019 - XII ZB 310/18 in NJW 2019, 2020.
[10] BGH NJW 2017, 1883, 1885f.; BGH, NJW 2019, 2020 (2023).
[11] Münch, in Säcker/Rixecker/Oetker/LimpergMK-BGB (2022), §1408, para. 74.
[12] Münch, in Säcker/Rixecker/Oetker/LimpergMK-BGB (2022), §1408, para. 32.
[13] Münch, NJW 1996, 3320, (3320f.).
[14] BuA 2008/13, 46; Gasser, Praxiskommentar (2019), Art. 552 § 1 para. 24, 73; Shiver, in Heiss/Lorenz/Schauer, Liechtenstein Foundation Law (2022), Art. 552 §1 para. 35.
[15] Jacob, The Liechtenstein Foundation (2009), para. 119.
