September 2019.

The marital agreement is the most delicate topic in a marriage. The image of a blissful in-love couple can get stained if there is a prenuptial between them, except for a significant difference in wealth and social status between the two parties.

 What can you make agreements about?

According to the first article in this series, Know your rights in marriage: Assets, partners can make separate agreements on assets excluded by law from the common assets, namely pensions, untransferable rights, and compensations.

The couple can agree on how much and how long an asset should be included in the common assets: should it be 100% or only a part of it; or should it be until divorce or death do us part. With a marital agreement, partners can share assets excluded from the common assets by law.

A heritage agreement cannot be agreed upon without the approval of the giver. Due to the Danish high divorce rate, most parents want the heritage of their children to be separated from the common property. Keeping assets for yourself can be tricky in a marriage. The best option is an agreement based on the law Article 12, point 1, part 1: the owner keeps the asset in the case of separation or divorce but shares it with the partner in the case of death. Every heritage agreement should be registered in the giver’s testament according to Article 23 of the law.

A prenuptial agreement is not always bad for the weaker side. If one partner has a risky business, big debts or obligations, the agreement will keep the assets safe from the partner’s creditors. One of the most common business tricks when a company is on the edge of bankruptcy is the owner will transfer assets to the spouse, so he/she can keep them out of reach of the creditors.

What can you not make agreements about?

Partners can make separate agreements if they do not deviate from the Danish Marriage Law. Nevertheless, partners cannot agree about unconditional payments in the future, or private debt should be deducted from the common asset. When agreements are made under foreign laws, they will not be legitimated under Danish law if they conflict with the Danish constitution.

Marital agreements in reality

Marital agreements are what we are talking about, but only 1 in 3 couples do it, despite the Danish average divorce rate of 55% during the last 5 years.