Contestation of a Prenuptial Agreement in Germany

As mentioned initially, your prenuptial agreement may have been invalid from the outset. As is well known, German family law grants the spouses extensive freedom when drafting prenuptial agreements. However, even the most minor formal errors can lead to the prenuptial agreement losing its legal validity completely or becoming partially invalid. For example, a marriage contract may be void due to

• a breach of the formal requirements (Section 1410 BGB),
• a breach of a statutory prohibition (Section 1614 (1) BGB),
• unfair or unlawful circumstances,
• immorality (i.e. unilateral disadvantage).

Section 1410 of the German Civil Code (BGB) stipulates that a prenuptial agreement is only legally valid if it has been notarised in the simultaneous presence of both contracting parties. This means that neither of the contracting parties may be represented when the agreement is concluded – not even by a lawyer. The prenuptial agreement remains invalid if this legal requirement is not complied with.

Prenuptial agreements that contain clauses that violate a legal prohibition are also invalid following Section 134 BGB. In particular, the waiver of maintenance claims – be it through the exclusion of separation or child maintenance – is deemed prohibited per Section 1614 (1) BGB. In some circumstances, a single void clause is sufficient to render the entire prenuptial agreement invalid. However, there is an exception here: if one of the contracting parties can credibly prove that the prenuptial agreement would have been concluded without the prohibited clause, the other provisions remain valid.

If one spouse takes advantage of a circumstance for their benefit, the prenuptial agreement may be considered immoral and invalid under Section 138 BGB. This is especially the case if one of the contracting parties or spouses is in a specific relationship of dependence on the other, for example, in the case of the possible receipt of a residence permit through the marriage or the pregnancy of the future wife. If one of the contracting parties signs the prenuptial agreement without understanding its content and consequences, the above applies. The exploitation of economic or emotional dependency, therefore, leads to a nullity under Section 138 BGB.

When assessing the prenuptial agreement, it should be borne in mind that the agreement cannot only be deemed immoral and, therefore, invalid in cases where an individual clause appears to be unacceptable in a legal sense. For example, the individual clauses of the contract may appear acceptable on their own, but in combination, they take undue advantage of the spouse. If a court categorises the prenuptial agreement as immoral, it can no longer be subsequently amended.

If one of the partners refers to the prenuptial agreement and the other partner was entitled to assume different premises when signing it given their life situation at the time, this may be in breach of the principle of good faith. In such a case, the agreement is not deemed entirely invalid. The disadvantaged spouse can assert their claims so that their disadvantages are compensated.

If one of the spouses was deceived or threatened when the agreement was concluded, or if they were mistaken about their declaration’s content, the prenuptial agreement can be contested. This results directly from Section 123 BGB (contestability due to deception or threat), which applies to all declarations of intent – regardless of the type of contract:

(1) A person who has been induced to make a declaration of intent by deceit or unlawfully by duress may avoid the declaration.

(2) Where a third party committed this deceit, a declaration that had to be made to another person may be avoided only if the latter knew of the deceit or ought to have known of it. If a person other than the person to whom the declaration was to be made acquired a right as a direct result of the declaration, the declaration made to that person may be avoided if they knew or ought to have known of the deceit.

Deception regarding the prenuptial agreement can always be considered, for example, if one of the spouses has fraudulently deceived the other regarding their financial circumstances (i.e. income and assets). The deception prevented the spouse from realising the financial losses their signature would entail in the event of a divorce. The prenuptial agreement can be contested if a spouse was coerced into agreeing to a specific prenuptial agreement through an unlawful threat.

In contrast to the more common types of contracts (purchase agreements, rental agreements, etc.), an error in content or declaration is extremely rare as a reason for contesting a prenuptial agreement. This is solely due to the strict formal requirements: prenuptial agreements are always signed in the presence of a notary, who informs the spouses of the meaning and scope of their declarations of intent.

There are two main constellations that are relevant in legal practice:

• The agreement is deemed invalid from the outset if there is an immorality or a breach of form. In such a case, having the prenuptial agreement examined by an experienced German family law lawyer to obtain final certainty regarding its invalidity is sufficient.
• If threats, deception, or error led to the conclusion of the contract, the cancellation must be made in good time. Only then can the agreement lose its validity.

For this purpose, an informal application to contest the prenuptial agreement must be submitted to the competent family court. To assess the chances of success and strengthen your legal position, it is highly advisable in such a case to seek skilled legal advice. The German lawyers at Schlun & Elseven will be happy to support you, submit the relevant application to the competent court and explain to you which documents need to be collected and attached to the application for this purpose. Contact our German family lawyers today to find out more about our services in this regard.

The deadline for filing the contestation application depends on the contestation’s reason. For example, after becoming aware of the error, a contestation on the grounds of error must be made immediately (i.e., without culpable delay, Section 121 (1) BGB). As a rule, about 14 days are sufficient. However, minor deviations from this period are conceivable if they appear justified by the specific circumstances of the individual case. For example, it must have been possible for the parties involved to consult a lawyer within this period. The situation is different in the case of deception or threats. In this case, the cancellation must be made within one year (Section 124 BGB). The start of the period is when the spouse becomes aware of the unlawful act.

However, avoidance is excluded in all cases where the unlawful prenuptial agreement was signed more than ten years ago. This does not apply, however, if the applicant was prevented from contesting the contract by force majeure or was not fully legally competent.

Contesting a prenuptial agreement is usually a legally complex process. If your personal or financial circumstances have changed so that the prenuptial agreement no longer adequately reflects them, but your spouse refuses to amend or annul it, a contestation may seem appropriate. However, it should always be seen as a last resort. With a lawyer’s help, you may persuade your spouse to agree to an annulment. If, however, threat, deception or error should be considered grounds for annulment in your case, skilled legal assistance is essential to ensure the desired result and enforce your claims legally. As a multidisciplinary full-service law firm specialising in German and international family law, we are always available to support you in clarifying family law issues.