Prenuptial Agreements in Germany

Concluding a prenuptial agreement in no way implies that the parties involved are expecting to get divorced. Instead, it is advisable to draw up a prenuptial agreement if the relationship is intact, and only the remote possibility of divorce should be considered. In this way, fair conditions can be negotiated for both parties so that neither spouse feels disadvantaged nor ignored in the event of a separation. The prenuptial agreement is, therefore, not a sign of a relationship doomed to failure, but merely a precautionary measure.

The primary legal standard for prenuptial agreements in Germany is Section 1408 of the German Civil Code (BGB). According to this, spouses can regulate their property relations through a contract and cancel or change the matrimonial property regime even after the marriage has started. A marriage contract can thus be concluded before or during the marriage. The agreement must be written down by a notary with both parties present simultaneously (Section 1410 BGB) to be valid.

In addition to this formal requirement, several substantive requirements must be observed. For example, a prenuptial agreement can be challenged in court if it is ambiguous, unclear, or inherently unfair. Although not mandatory, it is therefore highly advisable to consult an experienced German family lawyer to ensure the legal validity of the contract. Our legal experts have extensive experience in this area and will be happy to assist you in drafting an agreement that is customised to your needs.

A prenuptial agreement gives the spouses control over their future. It allows the parties concerned to decide for themselves what should happen in the event of a divorce. In this way, the risk of demanding and painful divorce proceedings is minimised. With the support of an experienced lawyer, agreements can be reached that protect the interests of both parties. A divorce is already highly stressful – knowing that the essential legal issues have already been clarified can be a great relief in this situation.

With a prenuptial agreement, spouses can regulate how to proceed with individual assets or assets obtained during the marriage. According to Section 1363 BGB, the standard legal situation in Germany is a community of accrued gains. This means that in the event of divorce, the accrued gains of the assets obtained during the marriage are divided equally between the spouses (Section 1363 para. 2 sentence 2 BGB). However, assets obtained before the marriage remain unaffected by this regulation.

Rules can be made on certain property positions in the prenuptial agreement. For example, the spouses can stipulate who is to keep the joint home in the event of divorce. In addition, the prenuptial agreement can include provisions on mortgage payments and the like. Such contracts can prevent tiresome court proceedings and unsatisfactory outcomes.

Spousal maintenance claims can also be the subject of a prenuptial agreement. It should be noted, however, that the maintenance claim provided for the separation phase cannot be waived entirely. On the other hand, the spouses can agree that there will be no claim to maintenance after the divorce. It is also worth mentioning that under certain circumstances, the obligation to pay maintenance does not apply even without a marriage contract, such as in the case of a lack of financial means. In the event of a shortage, the obligation to provide child maintenance usually prevails.

In addition to maintenance claims, agreements regarding pension equalisation can also be made in the marriage contract. This concerns entitlements and prospects for retirement or disability pensions, i.e. your financial situation in old age. Here too, it is worth reaching an arrangement that is in the interests of both partners.

In the case of binational marriages, a choice of law can also be made in the marriage contract, i.e. the applicable national family law can be determined. It can also be determined where the marriage is to be divorced and, accordingly, under which law the divorce is to be finalised. In the event of an actual divorce, however, seeking legal advice and representation from a specialist in international family law is always advisable, even with a marriage contract.

Essentially, a prenuptial agreement is characterised by its individual nature. There is no template that can be applied to every marriage. Instead, the spouses decide exactly what is to be regulated and what the individual agreements should look like. You should, therefore, agree with your partner on what should be stipulated in the contract in your case. Our lawyers will then take care of the rest.

Although it is understandable to be reluctant to think about the breakdown of a marriage at the beginning, this is precisely the time to draw up a prenuptial agreement, as agreements at this stage are usually made in the best interests of both parties. A fairly negotiated prenuptial agreement can help to avoid unnecessary court proceedings in the future.

As important as it is for all married couples, a prenuptial agreement is even more important for couples where at least one spouse is an entrepreneur or self-employed. One of the reasons for this is that the division of property can have a negative impact on the economic position of the business established. As mentioned above, equalisation of gains takes place after the divorce, whereby the assets acquired during the marriage are divided between the spouses (see Section 1363 BGB). However, this regulation can be waived with a marriage contract and replaced by another agreement. In this way, individual arrangements can be made regarding one’s business. Accordingly, the conclusion of a marriage contract is strongly recommended for marriages between entrepreneurs.

Marriage contracts have additional value for married couples with at least one foreign spouse. The contract ensures that both spouses know how the equalisation of property is regulated under German law. You also have the option of making agreements in accordance with foreign law or your own ideas. Our lawyers will be happy to inform you about the German legal situation and the various options.

Prenuptial agreements in Germany may not be concluded to penalise the economically weaker partner unduly. For example, there are limits in Germany to the waiver of maintenance payments if the financial situation of the maintenance debtor allows this without any problems. Furthermore, maintenance payments cannot be excluded entirely. It must also be considered whether the gain of one spouse in relation to the other is due to the fact that the latter has taken over the care of the joint children and the household management. The marriage contract can be contested if one spouse is unreasonably or unilaterally disadvantaged. You should, therefore, consult a lawyer to explain the legal framework and your individual options so that the prenuptial agreement is not invalidated in the event of divorce. This would allow the disadvantaged partner to demand the legal separation of property by contesting the marriage contract.

In Germany, it is possible to make subsequent changes to the marriage contract. This is relevant, for example, if the circumstances or personal situation of the spouses change. This includes, for example, a significant increase in income or a major professional reorientation. An amendment to the marriage contract should not be pursued unilaterally. Instead, the adjustments should correspond to the changed interests of both spouses. As this is also a complicated undertaking, it is advisable to seek legal advice to ensure that the new prenuptial agreement fulfils the legal requirements. The prenuptial agreement can also be annulled if both parties wish to do so. Once a prenuptial agreement has been concluded, it is, therefore, never static but is subject to the spouses’ wishes at any time.