The matrimonial property regime clause in the articles of association
Marital property clauses are included in partnership agreements in order to prevent the business share from being included in the equalization of gains in the event of divorce. At first glance, this may seem unfair to the shareholder's spouse, but it merely takes account of the fact that the valuation of business shares regularly shows high values that arise from the inclusion of future profits. At the time of the divorce, these profits have not yet accrued to the partner and the claim to equalization of gains arises as soon as the divorce becomes final.
The equalization of gains is due immediately. This outflow of liquidity primarily affects the shareholder, but can also have an indirect impact on the company, as it may be dependent on contributions from shareholders in times of crisis. If the shareholder does not have the necessary liquidity to fulfill the gain claim from the share, a forced sale may occur. Such a change in the shareholder structure is also associated with uncertainties. For these reasons, the shareholders have a legitimate interest in concluding and complying with a matrimonial property regime clause.
In terms of content, there are various types of formulation. The shareholder is often given the choice of either agreeing on separation of property or modifying the statutory matrimonial property regime of community of accrued gains so that the participation in the company is not included. In addition, the shareholder is usually granted a period of several months within which to provide proof of fulfillment of the obligation. This means that if no prenuptial agreement exists at the time of the request, it can be concluded retrospectively. However, this laissez-faire attitude is highly problematic, because if the spouse does not (or no longer) play along, it will be almost impossible to avoid a breach of contractual obligations.
The legal consequences of a breach of the matrimonial property regime clause are serious. As a rule, the articles of association provide for the possibility of redeeming the share after the deadline has expired. The shareholder loses his shareholder status upon receipt of the redemption resolution. A compensation claim remains in accordance with the terms of the articles of association.
It is therefore advisable to conclude a prenuptial agreement when becoming a shareholder. If no prenuptial agreement exists, this can be drawn up at a later date.
Under no circumstances, however, is there an obligation under the articles of association to provide the co-partner with information relating to arrangements concerning personal assets. Corresponding private arrangements are not subject to disclosure and should be extensively blacked out. In particular, if a so-called marriage and inheritance contract has been concluded, legal assistance should be sought in assessing the scope of the duty of disclosure.
We therefore recommend: Check your partnership agreement for such an obligation and if no matrimonial property regime has yet been agreed, please do so. The economic and personal consequences of non-compliance can be serious.
Status: 13.11.2023