Prenuptial Agreements in Germany

Prenuptial Agreements in Germany

More and more married couples and engaged couples are opting for a prenuptial agreement, as the traditional marriage with only one working spouse no longer corresponds to today’s norm. The “standard solution” laid down in the Civil Code makes a contractual arrangement deviating from this appears sensible in such a case. In this way, both spouses can protect themselves and do not have to expect unpleasant surprises in the event of a divorce.

However, concluding a prenup (“marriage contract”)in no way implies that the parties involved expect to get divorced. Rather, it is advisable to draw up a prenuptial agreement if the relationship is intact and only the remote possibility of divorce is to be taken into account. The prenuptial agreement is thus not a sign of a relationship doomed to failure but merely a precautionary measure. In order to ensure the necessary legal clarity, it is, therefore, advisable to consult an experienced family law lawyer.

Schlun & Elseven Rechtsanwälte offers comprehensive support in all family law matters. Our lawyers have the required expertise and empathy to clarify issues as clearlyas possible for you and your spouse and ensure that the prenuptial agreement complies with all formal requirements and safeguards your interests.

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What is the Legal Basis for Prenuptial Agreements in Germany?

The primary legal standard for prenuptial agreements is § 1408 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 been started. A marriage contract can thus be concluded before the marriage or during the marriage. The agreement must be written down by a notary with both parties present simultaneously (cf. § 1410 BGB) to be valid.

In addition to this formal requirement, some content-related conditions must be observed. For example, a marriage contract can be challenged in court if it is ambiguous, unclear or inherently unfair. Therefore, it is advisable to consult an experienced and qualified lawyer to guarantee the contract’s validity. Our legal experts have already drawn up many prenuptial agreements and will be happy to assist you.

What is Regulated by a Prenup?

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

In the marriage contract, rules can be made on certain property positions. 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 tedious 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.

Essentially, it must be considered that a prenuptial agreement is characterised by its individual nature. No template can be applied to every marriage. Instead, the spouses determine what exactly is to be regulated and the individual agreement’s appearance. Therefore, agree with your partner on what should be contractually stipulated in your case. Our lawyers will then take care of the rest.

For Whom is a Prenuptial Agreement particularly Advisable?

The reluctance to consider failure at the beginning of a marriage is understandable. Nevertheless, it is precisely this time that lends itself to the conclusion of a prenuptial agreement, as agreements at this stage are regularly 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, there is an increased importance of the prenuptial agreement for couples in which at least one spouse is an entrepreneur or self-employed. This importance is due, among other things, to the fact that a property division can negatively impact the economic position of the established business.

As mentioned above, after divorce, there is an equalisation of gains, according to which the assets acquired during the marriage are divided between the spouses (cf. § 1363 BGB). However, this regulation can be waived with a marriage contract and replaced by another agreement. This way, individual arrangements can be made regarding one’s business.

Prenuptial agreements have an additional value for married couples where at least one spouse has a foreign nationality. The contract ensures that both spouses are aware of how the equalisation of property is regulated under German law. They also can make agreements in accordance with foreign law or their own ideas. Our lawyers will be happy to explain the German legal situation and the various options to you.

What are the Benefits of Prenups?

A prenuptial agreement grants the spouses control over their future. It allows them to decide for themselves what should happen in the event of a divorce. This way, the risk of laborious and painful divorce proceedings is minimised. With the support of an experienced and qualified lawyer, agreements can be reached that safeguard the interests of both parties.

Divorce is already extremely stressful in itself. Knowing that the essential legal issues have already been clarified can be a great relief in this case.

When is a Prenup Invalid?

Prenuptial agreements may not be concluded to disadvantage the economically weaker partner unreasonably. Thus, there are limits to a waiver of maintenance payments if the financial situation of the person obliged to pay maintenance allows this without any problems.

Moreover, maintenance payments cannot be excluded entirely.

Furthermore, it must be considered whether the gain of one spouse concerning the other is due to the latter’s taking over the care of the joint children and the household management.

In the event of unreasonable or unilateral discrimination against one spouse, the marriage contract can be contested.

You should therefore have a lawyer explain the legal framework and your individual options to you to avoid the invalidity of the marriage contract if it is used.

Is it Possible to Make Changes to the Prenup?

It is possible to make subsequent changes to the marriage contract, and this is relevant, for example, if the circumstances of life or the personal situation of the spouses change. Such changes include, for example, a considerable increase in income or a significant professional reorientation.

An amendment of the marriage contract should not be pursued unilaterally. Rather, the adjustments should correspond to the changed interests of both spouses.

Since this is also a complicated undertaking, it is advisable to seek legal advice to ensure that the new marriage contract also meets the legal requirements.

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Practice Group: German Family Law

Practice Group:
German Family Law

Dr. Tim Schlun

Lawyer | Managing Partner

Maria Ivanova

Certified Specialist Lawyer in Family Law

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