Prenup Lawyers in Germany

What is the Legal Basis for Prenuptial Agreements?

Prenuptial agreements are legislated for under § 1408 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). It outlines that the parties can sign the agreement before or during the course of the marriage. Although there is no set model provided for, as prenuptial agreements are individual in content, § 1410 BGB does specify that the contract has to be signed, with both parties present, in the presence of a notary for it to be deemed legally binding. As outlined later, not all prenups in Germany – even when signed by both parties – will be held as legally binding in court.

Getting expert legal assistance in drafting a prenuptial agreement should be strongly considered but is not necessary. Still, it is recommended to ensure that the parties have agreed to what is outlined in the contract. Furthermore, where a prenup involves ambiguity, inherent unfairness and lack of clarity in different areas, the parties can challenge it in court. Therefore, using our legal assistance will ensure that your marriage contract legally outlines your exact requirements.

What Can be Covered by a Prenup in Germany?

Prenuptial agreements cover the assets accumulated during the marriage and can be used to protect other assets. In a divorce, the statutory requirements, as laid out by § 1363 BGB, consider the assets accumulated during the marriage to be divided evenly between the spouses. The assets accumulated before (and after) the partners’ marriage are not considered unless an agreement is in place.

Spousal maintenance is another area that a prenuptial agreement can cover. Although it is impossible to create a waiver in maintenance during the separation period, it is possible to make one for post-divorce maintenance. This waiver may be put in place in the event of both parties earning enough money to deem maintenance payments to be unnecessary. More information regarding spousal maintenance is available on our page on the topic. Still, it is worth knowing that there are exceptions to necessitating spousal maintenance where the party in question does not have the financial resources to provide the supports. In such events, child support is considered to be a greater priority.

Property is another area covered by prenups. It may suit the parties to decide on a contractual basis how the property (or properties) will be divided following a divorce. By doing so, the couple may once again prevent complicated and unsatisfactory results arising from court proceedings. A prenup would outline which partners would continue living in the marital home and whether the other partner would keep any other properties available to the couple. Moreover, issues around tax payments, mortgage payments etc., could also be resolved by such a contractual agreement.

Above all, it is worth bearing in mind that the individual couple sets the prenup. There is no set template outlining what has to be covered in them. For this reason, it is worth discussing the issue in-depth as a couple to decide what you believe is worth considering in such an event.

Who Should Consider a Prenup?

One does not think about divorce in the lead up to or at the beginning of a marriage. However, this may be the right time to arrange a prenuptial agreement to ensure that the divisions are in both parties best interests. Coming up with a fair prenup while times are good may help prevent potentially damaging court proceedings in the future.

As much as they are valuable for all married couples, prenups are vital for couples in which one of the partners is an entrepreneur or self-employed. Without an agreement, the entrepreneur’s business may experience enormous difficulties due to post-divorce division. In Germany, the assets obtained during a marriage are seen as the accrued gains of the spouses and thus will be divided equally in the event of a marriage ending. § 1363 BGB outlines this requirement and states that this is the statutory requirement if there is no agreement.

Couples involving foreign nationals based in Germany should also consider prenuptial agreements. Getting a prenup ensures that both parties know what is involved with marriages and divorces in German law. They will be prepared for whatever the future brings with a German lawyer’s guidance by availing of an agreement.

What are the Benefits of Prenups?

In general, a prenuptial agreement provides couples with control over what may come to pass. It is not the most pleasant of topics to think about, especially when a marriage is going well, but it should be seen as an insurance policy. Creating a fair prenup will help to alleviate the risk of bitter and messy divorce proceedings. By using a legal expert with knowledge in the area, and with careful consideration and open communication, spouses should be able to formulate an acceptable contract for both parties.

When is a Prenup Invalid?

Prenuptial agreements cannot be designed to intentionally put the economically weaker partner in a significantly worse position. For example, this is expressed where the prenup waives the requirement for the spouse to pay spousal maintenance when that partner is not in a financial position to reject such support. Another area in which a prenup can be challenged is when one of the partners’ incomes has risen compared to the other’s, over the course of the marriage, due to taking care of children at home. The court may intervene in these cases. Furthermore, the prenup cannot allow one of the partners to escape from paying child support payments. Essentially, where a prenup can be seen as unfair or one-sided, the court may intervene. Therefore, it is vital to avail of legal assistance to ensure that any prenuptial agreement you wish to draw up is legally valid.

Is it Possible to Make Changes/Adjustments to the Prenup?

When it comes to prenuptial agreements, it is possible to make adjustments and changes. As life situations change, so can the deemed requirements within a contract. Changes may be considered when the personal situations have changed, for example, spouses’ earnings or working situations. The step to make adjustments should, however, not be pursued unilaterally. Making changes should instead only be considered when both partners are on the same wavelength. Opening up a prenup to changes and adjustments can be a burdensome endeavour. Once again, legal assistance will ensure that everything regarding changes will remain legally valid and suitable to the partners’ aims.