Amendment and Cancellation of the Prenuptial Agreement in Germany

German contract law is based on the principle of loyalty in contracts (pacta sunt servanda – contracts must be kept). However, once a prenuptial agreement has been concluded, this does not mean the conditions set out must apply for all eternity. Numerous reasons can speak in favour of amending or annulling the prenuptial agreement.

Example 1: At the time you concluded a prenuptial agreement, you were both financially independent, which has now changed for one of the spouses. A significant increase in income or a professional reorientation could also have fundamentally changed your situation, meaning that the existing prenuptial agreement needs to be reconsidered. Another conceivable reason is that one of the partners had a different nationality at the time of the marriage, which directly impacted their financial situation. If one of these conditions changes, it is possible that the provisions originally agreed in the prenuptial agreement no longer correspond to the current life situation or your future plans. There is often an interest in adapting the prenuptial agreement to the new circumstances or cancelling it altogether in such a situation.

Example 2: An unexpected change in family planning is a common situation in which an amendment or cancellation of the prenuptial agreement may become necessary. You may not have planned to have children with your partner at the time of your marriage. As you were working at the time, you were largely financially independent. Given this life situation, you decided – should it come to a separation/divorce at some point – in favour of a prenuptial agreement that excludes pension equalisation and mutual maintenance claims. Now, contrary to your original life plans, you have become a mother/father: To devote yourself entirely to caring for your child after birth, you have given up your job wholly or partially.

For those who stay at home, such a family model entails considerable financial disadvantages. This lifestyle is reflected in a lack of pension entitlements and leads to little or no wealth accumulation in the long term. To prevent such a disadvantage and to be protected in the event of a divorce, it always makes sense to ensure financial compensation in a prenuptial agreement for the partner who gives up their career for the benefit of the family. In the event of a separation, the contractual agreement can determine how post-marital maintenance will be organised – considering the existing professional qualifications and the expected earning potential.

If your contractual agreement does not provide for compensation, the question arises as to how you and your children would be financially provided for in the event of separation/divorce. According to your prenuptial agreement, you could not assert any financial claims in such a situation, which would put you at an unreasonable disadvantage. In such a case, the contractual agreement can be amended or cancelled. In both cases, this requires formal consent from yourself and your spouse. However, unilateral cancellation is possible if you have agreed to a right of withdrawal in your prenuptial agreement.

Please note: There is no need for a cancellation if the prenuptial agreement is invalid from the outset. Our German family lawyers will explain the circumstances under which a prenuptial agreement is invalid and how to deal with it.

The same formal requirements apply to the declaration of cancellation as to the signing of the prenuptial agreement (Section 1410 BGB). To ensure that both spouses fully agree regarding the prenuptial agreement that has become obsolete, the declaration of annulment must also be signed by both parties in the presence of a notary and then notarised by the notary. Only in this way will it retain its legal validity. The notary fees incurred here – as with the conclusion of the prenuptial agreement – are based on the spouses’ assets. If this has not changed significantly in the meantime, the costs for the annulment declaration are similar to those for concluding the prenuptial agreement.

Once the prenuptial agreement has been cancelled, the provisions of the German Civil Code are restored in full. Our lawyers will happily explain the consequences of cancelling the contract in your case.

Changing or cancelling a prenuptial agreement is a legally complex process. To avoid decisions that would result in repeated visits to the notary (and thus additional costs), it is always advisable to consult an experienced lawyer. If your personal or financial circumstances have changed to such an extent that the prenuptial agreement no longer adequately reflects them, an amendment may be advisable. With a lawyer’s help, you can convince your spouse, who may still be undecided, to take this step. If consent to the amendment or cancellation of the existing prenuptial agreement is nevertheless refused, the last resort is to contest the prenuptial agreement. Our German family law practice group will happily inform you about the various grounds for avoidance and the deadlines to be observed. As a multidisciplinary full-service law firm specialising in German and international family law, we are always available to assist you in resolving property-related issues.