Miss Money, a successful business woman, realising the considerable difference in wealth between herself and her future husband Mr Doe, an electrician by trade, entered into a pre-nuptial contract which provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. Six years and two children later, the marriage broke down. Mr Doe has now applied for financial relief. Can Miss Money use the pre-nuptial contract to protect her assets?

Variation: Miss Cinderella, who was pregnant, wanted to marry the father of her unborn child. The father, Mr Money, agreed to do so only on the condition that the parties conclude a pre-nuptial agreement. This agreement provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. Six years and two children later, the marriage broke down. Miss Cinderella has now applied for financial relief. Can Mr Money use the pre-nuptial contract to protect his assets?

Case References: Radmacher (formerly Granatino) v. Granatino [2010] UKSC 42; BVerfG, 29.03.2001, 1 BvR 1766/92, BVerfGE 103, 89, 101.

AUSTRIA

OPERATIVE RULES

Regarding the matrimonial property regime, Miss Money can use the pre-nuptial contract to defend her assets as long as the marriage subsists. Depending on further facts, she will not be able to protect all of her assets upon divorce. Regarding alimony, Miss Money will not be able to fully protect her assets during marriage. Depending on further facts, she may or may not be able to fully protect her assets upon divorce.

Variation: In principle, the same rules would apply. Depending on further facts, the extent to which Mr Money can protect his assets regarding matrimonial property may be somewhat less after divorce than in the previous situation, and even rather small regarding alimony both during marriage and after divorce.

DESCRIPTIVE FORMANTS

The agreement concluded between the parties apparently has a twofold purpose, namely to arrange the matrimonial property regime between the future spouses in terms of a strict separation of assets, and to exclude any alimony obligations between the partners to the utmost extent possible.