Lawyer (H) Sonja Toft has won a landmark case which has now established that a prenuptial agreement is invalid if it has only been registered after a petition for separation or divorce has been filed.
Lawyer Sonja Toft represented the wife before the District Court, the County Court and finally the Supreme Court, when the case was appealed by the husband.
Sonja Toft represented B, and claimed on her behalf that the marriage contract was invalid, as it had only been filed for registration after B had submitted a request for separation to the State Administration.
The Supreme Court upheld the appeal and confirmed the order of the Landsgericht on the following grounds:
The case concerns whether B's request for separation on 8 March 2018 renders invalid the marriage contract signed by B and A on 2 September 2015, but which was not registered until after 8 March 2018.
"The legal property regime between spouses is community of property, cf. section 5 of the Spouses' Financial Relations Act. This property regime does not apply if the spouses have decided otherwise in a valid marriage contract. Under Section 20 of the Spouses (Financial Relations) Act, a marriage contract is valid only if it is signed by both spouses and entered in the register of persons. The legal effects of registration are calculated from the date of notification to registration. In the event of separation or divorce, the community of property ceases to exist at the end of the day on which the application for separation or divorce is submitted to the Family Court (formerly the State Administration), and the basis for calculating the joint estate is the assets and liabilities belonging to the property on the date of termination, cf. Articles 26 and 27 of the Act.
The Supreme Court considers that the statutory scheme must be understood as meaning that, after the date on which the community of property has ceased, for example as a result of a request for separation, it is no longer possible to change the property regime between the spouses - not even by subsequent registration of a prenuptial agreement concluded before the date of cessation."
As the parties' prenuptial agreement had not been registered at the time of the termination of the matrimonial property regime on 8 March 2018, it is no longer valid, notwithstanding the registration on 14 May 2018.
The Supreme Court therefore upheld the order of the Regional Court.
This judgment thus definitively establishes the legal position under the law on the financial relations of spouses in a situation where the marriage contract has been registered only after the request for separation or divorce, and is therefore a judgment of principle.
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