Amending and Terminating a Prenuptial Agreement in Germany

It makes sense to amend a prenuptial agreement when the circumstances it was based on have changed, for example after the birth of a child, a major change in income, or a move abroad. German law does not require a particular reason for an amendment. Section 1408(1) of the German Civil Code (BGB) expressly allows spouses to change or terminate their property arrangements after the wedding, so they can agree on new terms whenever they both want to. Whether an amendment makes legal and financial sense depends on the circumstances of each case.

The following changes, in particular, are good reasons to have an existing agreement reviewed:

• Changes in either spouse’s income or assets
• The birth of a child or a change in family plans
• One spouse giving up or reducing paid work
• One spouse becoming self-employed or starting a business
• A major change in how the couple saves or invests
• A move abroad or another new international connection
• Doubts about whether individual provisions of the agreement are valid

When spouses sign a prenuptial agreement, they base it on their financial situation at the time. That situation can change considerably during a marriage. A review may make sense where, for example:

• one spouse’s income has risen sharply
• one spouse has built up substantial assets
• the financial dependence between the spouses has shifted

Founding or acquiring a business during the marriage raises its own questions, because any growth in the company’s value then counts toward the accrued gain. Prenuptial agreements for business owners are often built around exactly this situation.

A review should check whether the agreed terms on the property regime, the equalization of accrued gains (Zugewinnausgleich), pension rights equalization (Versorgungsausgleich), and spousal support still reflect what both spouses want. A change in financial circumstances does not in itself mean the agreement has to be amended. What matters in every case is the wording of the agreement and the couple’s current situation.

An amendment can be particularly important after the birth of a child.

If the agreement was signed when both spouses were working and financially independent, a child can change the situation fundamentally. A spouse who gives up paid work entirely or in part will often feel the effects most in their own retirement savings and career prospects.

Factors to consider include:

• how long the break from work lasts
• the spouse’s professional qualifications
• past and expected future income
• the effect on retirement savings
• the childcare arrangements
• the terms of the existing agreement

In these situations, it can make sense to review the existing agreement and, where appropriate, agree on fair compensation. Depending on the agreement and the case, this can affect different areas, such as pension rights equalization or spousal support. There is no single answer to what is appropriate. A shift in roles like this is also exactly what a court looks at if a spouse later relies on the agreement in a divorce.

For example, a couple may have agreed on separation of property and excluded pension rights equalization while both were working full time. If one spouse later stops working to care for their children, that spouse builds up few assets and only limited pension rights of their own, while the agreement still excludes any share in what the other spouse builds up. Without an amendment, that spouse would have to rely on a court reviewing the agreement in a divorce, with an uncertain outcome.

If a prenuptial agreement excludes or modifies pension rights equalization, a change in family circumstances calls for particularly careful review.

Pension rights equalization shares the retirement and disability pension rights both spouses have built up during the marriage. Where the agreement departs from this, a later change in circumstances may be a reason to revisit those terms. This applies in particular where one spouse significantly reduces or gives up paid work to care for children. Whether an adjustment makes sense, and to what extent, depends on the agreement and the circumstances of the case.

A waiver or limit on post-divorce spousal support (nachehelicher Unterhalt) can also call for a fresh legal review after a major change in circumstances. The key question is whether the couple’s finances or their division of family responsibilities have changed substantially since the agreement was signed.

There is, however, no general right to have the agreement amended. Whether its terms can and should be adjusted, and to what extent, depends on the individual case. Amendments can also work in the other direction. Where a change made during the marriage would take away rights one spouse has already built up, and that spouse receives nothing in return, the courts examine it more critically.

No. In many cases, a full termination is not necessary.

Where only certain provisions no longer fit, it can make sense to amend just those clauses. This might apply, for example, to provisions on:

• the property regime and the equalization of accrued gains
• pension rights equalization
• post-divorce spousal support
• individual assets or categories of assets

Which approach makes sense depends on the original agreement and on both spouses’ current personal and financial circumstances. A careful review before the notary appointment helps avoid unintended effects on the agreement’s other provisions.

The three routes compare as follows:

An amendment or termination generally must be notarized, with both spouses present before the notary at the same time (Section 1410 BGB). This is the same form a new prenuptial agreement requires. A privately drawn-up agreement is therefore not enough, and neither is a document the spouses sign separately. Before the notary appointment, settle exactly which terms should apply going forward.

A German notary (Notar) is a legally trained public official who reads the deed aloud, explains its legal effect, and must remain impartial between the spouses. The role goes well beyond that of a notary public in the United States.

For spouses who do not speak German, or who live abroad, the same options are available as for a new agreement, including translation at the appointment and notarization at a German consulate abroad.

If the agreement also contains provisions on post-divorce spousal support or pension rights equalization, the specific form rules for those areas apply as well:

• Post-divorce spousal support: Agreements on post-divorce support made before the divorce becomes final generally must be notarized (Section 1585c BGB).
• Pension rights equalization: Agreements on pension rights equalization must likewise be notarized as long as the court’s decision on equalization in the divorce is not yet final (Section 7 of the Pension Rights Equalization Act, VersAusglG).
• Court-recorded agreements: Where the spouses reach a settlement in court proceedings, recording it in the court record replaces notarization (Section 127a BGB).

Which form is required depends on what the existing agreement contains and on the planned amendment or termination.

Notary fees for an amendment or termination are set by the Court and Notary Fees Act (GNotKG) and depend mainly on the transaction value (Geschäftswert). For prenuptial agreements, the transaction value is generally based on both spouses’ combined assets under Section 100 GNotKG, although some agreements call for a different valuation.

The costs therefore cannot be given as a flat figure. They depend in particular on:

• which provisions are amended or terminated
• the scope of the new agreement
• the spouses’ current assets
• their current debts
• whether provisions beyond the property regime are affected

Where an amendment concerns only certain assets or specific claims, the transaction value is based on those alone, capped at the figure for the spouses’ combined assets (Section 100(2) GNotKG). The cost of a later amendment or termination can also differ from the cost of the original agreement, because what counts is the situation at the time of the new notarization. Legal fees for drafting and negotiating the agreement are separate, and we explain the expected costs before work begins.

Amending or terminating a prenuptial agreement typically involves five steps. At Schlun & Elseven Rechtsanwälte, we prepare as much as possible remotely, so the notary appointment is usually the only step that requires you to attend in person.

1. Review of the existing agreement: Your lawyer examines the current agreement, how the marriage has developed since it was signed, and any international ties that affect which law applies. This can be done entirely remotely, based on a copy of the deed.
2. Negotiation: The spouses agree on what should change. Where each spouse has their own lawyer, the negotiation usually runs between the lawyers. This stage can also be handled remotely.
3. Drafting: Your lawyer drafts the amendment or termination agreement and coordinates it with the notary in advance, so both spouses can review the draft well before the appointment.
4. Notarization: Both spouses sign before a notary at the same time, either in Germany or at a German embassy or consulate abroad that offers notarial services. If a spouse does not have sufficient command of German, the deed is translated for them.
5. The new deed: The notary keeps the original deed and issues copies of the new deed to both spouses. Keep yours with the original agreement, because the two documents together show which terms now apply.

If a prenuptial agreement set a different property regime and is terminated, the statutory community of accrued gains (Zugewinngemeinschaft) generally applies again, unless the spouses agree on another regime at the same time. For example, a couple who agreed on separation of property (Gütertrennung) returns to the community of accrued gains once that provision is terminated. If the agreement only dealt with spousal support or pension rights, the property regime itself does not change. Despite its name, the community of accrued gains is not a community property system: each spouse keeps their own assets, and only the gains made while the regime applies are balanced out when it ends.

For any later equalization of accrued gains, what matters is when the community of accrued gains began. Under Section 1374(1) BGB, a spouse’s initial assets (Anfangsvermögen) are the assets they owned, net of debts, when the property regime began. If a couple first had separation of property during the marriage and only later moved to the community of accrued gains, their initial assets are generally calculated as of that later date, not the date of the wedding. Unless the spouses agree otherwise, gains made while separation of property applied are therefore not shared.

A change to the property regime also has limited effect on third parties. Under Section 1412 BGB, spouses can generally rely on an amendment or termination against third parties, such as creditors or business partners, only if the third party knew the agreement existed when the transaction was made, or was grossly negligent in not knowing.

The financial consequences of a termination depend on the couple’s individual finances and the existing agreement. Changing the property regime can also have tax consequences, particularly for inheritance and gift tax, which our lawyers take into account when drafting the new agreement.

It can. Moving to or from Germany can raise questions about which law governs the agreement and which courts would deal with a later divorce, so a review is worthwhile. This applies in particular where:

• the spouses have different nationalities
• the spouses move their habitual residence to another country
• the family moves abroad permanently
• the couple has assets in more than one country
• the agreement contains a choice of law

Many couples married elsewhere and only later settled in Germany. Their original agreement may be governed by foreign law and may never have been drafted with German rules in mind, so a review shows whether it still works as intended now that they live here. For international marriages, the central question is which country’s law governs the matrimonial property regime. For more recent marriages, this is determined in Germany and the other participating EU member states by the EU Matrimonial Property Regulation (Regulation (EU) 2016/1103). Which law applies to a marriage depends in particular on when the couple married or made their choice of law, and on their personal circumstances.

After a move abroad, it is worth checking:

• which law applies to the existing agreement
• whether an existing choice of law still fits
• whether an amendment or a new choice of law makes sense
• how this affects the matrimonial property regime

A new choice of law made during the marriage generally applies only going forward, unless the spouses agree that it should apply retroactively. In cross-border cases, questions of international jurisdiction can also arise. Where an agreement was originally signed abroad or under foreign law, our lawyers assess case by case what this means for an amendment, working with partner firms abroad where needed.

Whether courts in another country will apply the amended agreement depends on their own rules, so it is worth checking how a German prenuptial agreement is treated abroad where a couple may live elsewhere in future.

The most common mistake is to treat an amendment as a private matter between the spouses. A side letter, an exchange of emails, or a document each spouse signs separately has no legal effect on a prenuptial agreement, however clearly both spouses agreed to it. Only a notarized amendment, signed with both spouses present at the same time, changes the agreement.

A second mistake is to change one clause in isolation. Provisions on the property regime, pension rights equalization, and spousal support often depend on each other, so a change to one can upset the balance the original agreement struck. Couples who have moved countries also sometimes assume their agreement now follows the law of their new home. That is not automatically the case, and an existing choice of law may need to be confirmed or replaced.

Neither spouse can amend or terminate a prenuptial agreement alone. If one spouse refuses, the agreement remains in force as it stands, but that does not necessarily mean a court will apply it as written. In a divorce, the court can carry out two reviews developed by the Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s highest civil court (BGH, judgment of February 11, 2004, XII ZR 265/02). In the validity review (Wirksamkeitskontrolle), it examines whether the agreement was void from the outset. In the enforcement review (Ausübungskontrolle), it examines whether a spouse is abusing the agreement by relying on it now, given how the marriage actually developed. In some cases, it may also be possible to challenge the agreement, for example where a spouse was deceived or threatened into signing it.

Whether either route is open depends on the agreement’s wording and the course of the marriage. Before it comes to that, negotiation, often between both spouses’ lawyers, is usually the more constructive route. Where the spouses have already separated, these negotiations often end in a divorce settlement agreement (Scheidungsfolgenvereinbarung), which settles the consequences of the divorce in one document.

An amendment rarely affects only one provision, and a change to the property regime or a new choice of law can alter how the whole agreement is assessed. If a separation is already on the horizon, have the agreement reviewed before divorce proceedings begin, so you know where you stand before negotiations start.

At Schlun & Elseven Rechtsanwälte, our family law team reviews your existing prenuptial agreement, drafts the amendment or termination agreement, and supports the negotiations through to notarization. If your spouse does not agree to a change, we assess whether the existing agreement would hold up in a divorce and advise you on your options. We advise clients from all over the world in English and German, work fully remotely where necessary, treat every matter with strict confidentiality, and explain the expected costs before work begins. Contact us to have your agreement reviewed by our family lawyers.