The matrimonial property clause in the articles of association
Marital property clauses are included in articles of association to prevent business shares from being subject to equalization of accrued gains in the event of a divorce. While this may seem unfair to the shareholder’s spouse at first glance, it simply reflects the fact that the valuation of business shares typically reflects high values derived from the inclusion of future profits. At the time of the divorce, these profits have not yet accrued to the shareholder, and the claim to marital gains arises as soon as the divorce becomes final.
The equalization of accrued gains is due immediately. This outflow of liquidity primarily affects the shareholder, but can also indirectly impact the company, as the company may rely on contributions from shareholders during times of crisis. If the shareholder does not have the necessary liquidity to satisfy the claim for accrued gains from the business 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 adhering to a matrimonial property regime clause.
In terms of content, there are various ways to structure such a clause. Often, the shareholder is given the choice of either agreeing to separate property or modifying the statutory community of accrued gains regime so that the interest in the company is excluded from it. In addition, the shareholder is usually granted a period of several months within which they can demonstrate compliance with the obligation. Thus, if no prenuptial agreement exists at the time of the request, one can be concluded retroactively. This laissez-faire attitude is, however, highly problematic, because if the spouse is no longer willing to cooperate, a breach of obligations under the partnership agreement will be virtually unavoidable.
The legal consequences of a breach of the matrimonial property clause are severe. Typically, the partnership agreement provides for the possibility of forfeiture of the partnership interest after the deadline has expired. The partner loses their status as a partner upon receipt of the forfeiture resolution. A claim for severance pay remains in accordance with the terms of the partnership agreement.
It is therefore advisable to enter into a prenuptial agreement upon becoming a shareholder. If no prenuptial agreement exists yet, one can be drawn up retroactively.
However, there is under no circumstances an obligation under the partnership agreement to provide the co-partner with information concerning arrangements regarding personal assets. Such private arrangements are not subject to disclosure and should be extensively redacted. In particular, if a so-called marriage and inheritance contract has been concluded, legal counsel should be consulted to assess the scope of the disclosure obligation.
We therefore recommend: Review your partnership agreement for such an obligation, and if no matrimonial property regime has yet been established, please do so. The consequences of non-compliance can be serious, both financially and personally.