When celebrities like Taylor Swift and Travis Kelce get married, speculation about a possible prenuptial agreement is never far behind. This creates the impression that prenups are primarily a tool for superstars, business dynasties, or individuals with fortunes in the millions.
Yet many of the underlying questions arise in far more "ordinary" life situations as well: What happens to an apartment that one partner already owned before the marriage? How should an inheritance be treated? What do both partners consider fair when one of them scales back their career to care for the family?
Nevertheless, prenuptial agreements often have a poor reputation. Many people associate them with distrust or with the idea of already contemplating a future separation on one's wedding day. Our experience, however, shows that they are usually about something else entirely: clarity, fairness, and the opportunity to discuss important financial questions together – while both partners are still working towards the same future.
What happens without a prenuptial agreement?
Couples who do not conclude a prenuptial agreement are automatically subject to the statutory provisions of Austrian marriage and divorce law. These provisions determine how assets are to be divided in the event of a divorce and under which conditions claims to post-marital spousal maintenance arise.
Contrary to a widespread assumption, marriage does not turn all assets into joint property. In the event of a divorce, however, the marital savings and the marital property in everyday use – that is, assets accumulated during the marriage and items that served the spouses' shared life – are subject to judicial division.
A practical example: One spouse purchases an apartment several years before the wedding. After the wedding, the couple lives there together; perhaps the children even grow up there. If the marriage later ends in divorce, this apartment may be included in the division of assets despite the original sole ownership. Many people affected find this surprising. However, the law provides for such an outcome in particular where the other spouse depends on the use of the apartment or where the couple's children have a need for it that merits consideration. With a clear contractual arrangement, the fate of the apartment could have been determined in advance.
In addition, depending on the spouses' income, lifestyle, and the circumstances of the divorce, statutory claims to spousal maintenance may arise. Whether the statutory framework matches the partners' individual expectations often only becomes apparent once the relationship is already facing serious challenges.
What can a prenuptial agreement regulate?
A prenuptial agreement primarily governs two areas: the division of assets and spousal maintenance in the event of a divorce. It gives couples the opportunity to determine for themselves which arrangements are suitable and fair for their shared life plans.
At the centre are usually provisions on the division of assets: the partners can determine how specific assets are to be treated in the event of a divorce, whether shareholdings, real estate, or income from a family business are to be excluded from a later division, and which assets are to remain allocated to each partner.
Individual arrangements can also be made regarding spousal maintenance. Taking their personal circumstances into account, the partners can regulate the amount, duration, and conditions of any maintenance claims.
Often, this is not only about protecting assets, but equally about jointly determining what both partners consider fair. Who should benefit from a family business? How should years be taken into account in which one partner puts their career on hold? How should inheritances or gifts be treated? Such questions are usually far easier to answer in calm times than in the midst of a separation.
What can a prenuptial agreement not regulate?
A prenuptial agreement cannot regulate custody of the couple's children or the children's maintenance claims. These areas are subject to special statutory protections and cannot be validly determined in advance.
Decisions concerning the couple's children must always be guided by the best interests of the child and cannot be bindingly agreed for the future. A prenuptial agreement therefore governs the property relations between the spouses; it cannot restrict the statutory rights of their children.
For whom is a prenuptial agreement particularly worthwhile?
A conversation about a prenuptial agreement is advisable for every couple.
The need for tailored arrangements is often particularly pronounced where business shareholdings, real estate assets, significant income disparities, or assets acquired before the marriage are involved.
International situations add a further dimension: if a couple lives in several countries or the partners hold different citizenships, the additional question arises as to which law applies in the first place. A prenuptial agreement can make an important contribution to legal certainty here by allowing the partners to expressly choose the applicable law.
What should couples pay attention to when concluding an agreement?
Three points are decisive when concluding a prenuptial agreement: the correct form, tailored drafting, and independent legal advice for both spouses.
First, the form: agreements governing the division of marital savings or the marital home in advance require a notarial deed; for agreements concerning other marital property in everyday use, written form is sufficient. If the prescribed form is not observed, the agreement is invalid.
Equally important is tailored drafting. Standard solutions rarely do justice to the actual circumstances of a couple's life and assets. A prenuptial agreement should therefore not only reflect the current situation but also anticipate possible future developments – such as children, periods of parental leave, or the building of a business.
Beyond that, comprehensive and independent legal advice for both spouses is essential. Only if both parties understand the consequences of the arrangements they have made is the later enforceability of the prenuptial agreement secured as far as possible.
In brief: What clients often ask us
Does a prenuptial agreement also regulate inheritance law?
No. A prenuptial agreement governs the financial consequences of a divorce, not the inheritance situation in the event of death. Those who also wish to plan for the event of death require additional instruments – such as a will.
Can a prenuptial agreement also be concluded after the wedding?
Yes. A prenuptial agreement can be concluded before the marriage, but equally at any time during an existing marriage, and can also be amended later – for instance, when life circumstances change.
Does this also apply to registered partnerships?
Yes. Registered partners can also regulate their property relations by contract; the division rules of the Austrian Marriage Act apply to registered partnerships mutatis mutandis.
Is a prenuptial agreement concluded abroad also valid in Austria?
That depends on the applicable law. In international situations, the matrimonial property regime is determined by the European conflict-of-law rules; whether and to what extent a foreign prenuptial agreement has effect in Austria must be assessed on a case-by-case basis.
Can a prenuptial agreement be declared invalid at a later stage?
In the event of a divorce, prenuptial agreements are subject to judicial fairness review. Arrangements that grossly disadvantage one party are not enforceable without restriction – which makes balanced drafting and proper advice for both partners all the more important.
What remains?
You do not need to fill stadiums or win Super Bowls for a prenuptial agreement to make sense for your own situation. The law provides a uniform legal framework for married couples. The realities of couples' lives, however, differ widely.
A prenuptial agreement enables individual solutions where the statutory default rules do not fit a couple's own circumstances. Those who engage with these questions early on can consciously set the course, protect assets in a targeted manner, and put arrangements in place that both partners can still rely on if their life circumstances should one day change.