Challenging a Prenuptial Agreement in Germany

Yes. German law offers three routes, and they work in different ways. Two of them are reviews the family court carries out itself, usually in divorce proceedings. These reviews were developed by the Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s highest civil court (BGH, judgment of February 11, 2004, XII ZR 265/02). The third is a formal challenge that the affected spouse must actively make within a deadline.

In practice, the routes are often argued together. The same facts, such as a draft presented only at the notary appointment, can support an argument that the agreement is void and also show how the signature came about. Which route offers the better prospects depends on the content of the agreement, the circumstances when it was signed, and how the marriage developed. Whichever route applies, the spouse relying on a defect generally has to prove it.

A prenuptial agreement is void if it was not properly notarized, if it contains a clause that breaches a statutory prohibition and the rest cannot stand without it, or if it places an evidently one-sided burden on one spouse. Outside these limits, German law gives spouses wide freedom to set their own rules on property, spousal support, and pension rights. A void agreement has no effect from the outset, and either spouse can rely on that without any deadline.

Under Section 1410 of the German Civil Code (BGB), a prenuptial agreement must be notarized, with both spouses present before the notary at the same time. An agreement the spouses draw up and sign themselves, an exchange of signed documents, or signatures given at separate appointments do not meet this requirement, and the agreement is void (Section 125 BGB). The same applies to later amendments. This is a common problem with informal side agreements, and with agreements drawn up abroad without a notary.

A clause that breaches a statutory prohibition is void under Section 134 BGB. The most common example in prenuptial agreements is a waiver of future separation support (Trennungsunterhalt), the support one spouse may owe the other while they live apart before the divorce. It cannot be waived for the future, because the prohibition in Section 1614(1) BGB applies to it. Child support is the child’s own claim, so the parents cannot waive it in their agreement at all.

A single void clause does not necessarily bring down the whole agreement. Under Section 139 BGB, the rest of the agreement remains valid if the spouses would have signed it without the void clause. Many agreements contain a severability clause to make this explicit. A severability clause does not help, however, where the agreement as a whole is one-sided.

An agreement is void under Section 138 BGB if, at the time it was signed, it placed such an evidently one-sided burden on one spouse that it is contrary to public policy. The court makes an overall assessment. It looks at what the agreement says and at why each spouse agreed to it.

The content alone is rarely enough. Courts look for circumstances showing that one spouse was in a weaker position when signing, such as:

• The spouse was pregnant when the agreement was signed
• The spouse’s right to stay in Germany depended on the marriage
• The spouse was financially dependent on the other, for example after giving up a job or moving countries for the relationship
• The spouse did not have sufficient command of German to understand the agreement
• The draft was first presented at the notary appointment, or shortly before the wedding
• The spouse was left out of the negotiations or had no opportunity to take independent advice

None of these circumstances automatically makes an agreement void. A pregnancy at the time of signing, for example, is a strong indication of a weaker negotiating position, but the court still assesses the agreement as a whole. It is also possible for clauses that would each be acceptable on their own to make the agreement void in combination, where together they leave one spouse with almost none of the protections German law provides on divorce.

The extent of the protection waived matters too. Spouses have the most freedom to modify the equalization of accrued gains (Zugewinnausgleich), the sharing of the increase in each spouse’s assets during the marriage, and the least to exclude childcare support for a spouse caring for a joint child. Our page on prenuptial agreements in Germany explains how courts rank these areas.

If the agreement is void, the statutory rules apply in its place. Unlike in the enforcement review, the court does not rescue a void agreement by adjusting individual terms.

A court will not apply a valid agreement as written where a spouse is abusing it by relying on it now that the marriage has broken down. This enforcement review under Section 242 BGB typically applies where the couple’s actual married life departed fundamentally from what they planned when they signed.

A typical example is a couple who agreed on separation of property (Gütertrennung), under which neither spouse shares in the other’s gains, and excluded pension rights equalization while both were working full time. One spouse later gives up work for years to care for their children. If the other spouse relies on the agreement in the divorce, the court may find that this is an abuse.

The agreement then remains in force, but the court orders an outcome that fairly balances both spouses’ interests in the new situation. In most cases, this means compensating the disadvantages the spouse suffered because of the marriage. The enforcement review has no deadline, but it is only carried out once a spouse relies on the agreement, which in practice means in the divorce.

A spouse can challenge a prenuptial agreement if they were deliberately deceived or unlawfully threatened into signing it, or signed it by mistake. These general rules of German civil law apply to prenuptial agreements as to any contract. Unlike the court reviews described above, a challenge concerns how a spouse’s consent was obtained. It requires the spouse to take action, and it is subject to strict time limits.

A spouse who was induced to sign by deliberate deception can challenge the agreement under Section 123(1) BGB. The most common case is a spouse who misrepresented their income, assets, or debts, so that the other spouse could not see what they were giving up. The deception must have been deliberate, and it must have caused the other spouse to sign. Where a third party, such as a family member, carried out the deception, the agreement can generally only be challenged if the other spouse knew or should have known about it (Section 123(2) BGB).

Incomplete disclosure without an active misrepresentation does not always amount to deception. It can, however, be taken into account in the validity review, which is one reason why both spouses should disclose their finances fully before signing.

A spouse who was coerced into signing by an unlawful threat can also challenge the agreement under Section 123(1) BGB. Making the wedding conditional on signing a prenuptial agreement is generally not an unlawful threat in itself, because neither partner is obliged to marry. That kind of pressure can still play a role in the validity review, particularly where it coincides with a pregnancy or a residence status that depends on the marriage.

A spouse who misunderstood what the agreement said, or who signed something they did not mean to sign, can challenge it under Section 119(1) BGB. In prenuptial agreements, this is rare. The notary reads the deed aloud and explains its legal effect, which leaves little room for a misunderstanding about what was signed. The exception is where language was a barrier and the deed was not properly translated. A spouse who successfully challenges for mistake may have to compensate the other spouse for losses they suffered because they relied on the agreement, unless the other spouse knew or should have known about the mistake (Section 122 BGB).

A successfully challenged agreement is treated as void from the outset (Section 142(1) BGB). The statutory rules then apply as if the agreement had never been signed. Where only part of the agreement is affected, Section 139 BGB again determines whether the rest survives.

Challenging a prenuptial agreement does not affect the marriage itself. Ending the marriage requires a divorce or, in narrow cases, an annulment of the marriage under different rules, as explained on our page on getting married in Germany. Where one spouse’s residence permit is based on the marriage, a separation can affect their right to stay, but that question is governed by immigration law, not by the prenuptial agreement. Our immigration lawyers advise on residence permits after divorce.

You challenge a prenuptial agreement for deception, threat, or mistake by giving written notice to your spouse. No court application is needed, and the notice does not need to be notarized. Where an agreement is void or fails the enforcement review, no separate step is needed at all: the spouse raises the defect when the other spouse relies on the agreement, usually in the divorce proceedings. Having the agreement reviewed before then is still worthwhile, because the assessment shapes every later negotiation.

Under Section 143 BGB, the notice must make clear that the spouse is challenging the agreement. For a challenge based on deception or threat, it must reach the other spouse within the one-year deadline. For a challenge based on mistake, it is enough to send it without delay. We recommend giving notice in writing, stating the grounds, and sending it in a way that proves receipt. Where the other spouse lives abroad, our lawyers arrange delivery so that receipt can still be proven in time.

If the other spouse disputes the challenge, the family court decides. In most cases, this happens in the divorce proceedings, when claims such as the equalization of accrued gains or spousal support depend on whether the agreement applies. A spouse can also apply to the court separately for a ruling on whether the agreement is valid. Where the spouses live in different countries, which country’s courts decide is a separate question, and our lawyers clarify it at the outset.

Because the spouse relying on a defect generally has to prove it, preparation is the decisive stage. In our experience, the following steps make the greatest difference:

1. Obtain a copy of the deed: The notary keeps the original and can issue copies to both spouses.
2. Reconstruct how the agreement came about: Collect drafts, emails, messages, and notes showing when the draft was first sent, who negotiated it, and what each spouse knew.
3. Gather financial records: Documents showing each spouse’s income and assets at the time of signing are central to proving deception or a one-sided burden.
4. Have the routes assessed: A lawyer reviews whether the agreement is void, whether it may fail the enforcement review, and whether grounds for a formal challenge exist.
5. Give notice in time: If there are grounds for a challenge, the notice must be given before the deadline expires, regardless of whether a divorce is already planned.

A challenge for deception or threat must be made within one year, and a challenge for mistake without culpable delay. No challenge is possible more than ten years after signing, while the court’s validity and enforcement reviews have no deadline at all. The periods start at different points:

“Without culpable delay” means as quickly as can reasonably be expected. Courts often treat around two weeks as the upper limit, allowing time to take legal advice, but the circumstances of each case decide. For the one-year period, certain rules on the suspension of limitation periods apply, for example where the spouse was prevented from acting by events beyond their control (force majeure) or lacked full legal capacity (Section 124(2) BGB). The ten-year limit is absolute.

In practice, the one-year deadline often expires long before a divorce. A spouse who discovers years into the marriage that the other spouse concealed significant assets cannot wait until the separation to act. If the challenge deadline has passed, the validity and enforcement reviews may still be available.

If you have only recently discovered that your spouse misled you about their finances, or the pressure you signed under has only now ended, the one-year period may already be running. Our family lawyers review the agreement, tell you whether a challenge is still possible, and make sure the notice reaches your spouse in time.

An agreement signed in another language or under another country’s law can be challenged on the same grounds as any other, but two further questions often decide the case: whether the spouse understood what they signed, and which country’s law governs the agreement.

A German notarial deed is normally drawn up in German. If a spouse does not have sufficient command of German, the deed must be translated for them instead of simply being read aloud, and the deed should record this (Section 16 of the Notarization Act, BeurkG). Where this did not happen, the consequences depend on what the deed records. If the deed states that a spouse lacked sufficient German but the deed was not translated, the notarization is defective, and the agreement may be void for lack of form. If the deed does not record the language issue at all, the notarization is generally valid in form, but the court can still take the language barrier into account when assessing whether the spouse understood what they were agreeing to and was in a weaker negotiating position. Our lawyers assess which applies in your case on the basis of the deed.

Many couples signed their agreement in another country, or under another country’s law, before settling in Germany. Whether such an agreement is valid, and on what grounds it can be challenged, depends first on which law governs it. For more recent marriages, this is determined in Germany by the EU Matrimonial Property Regulation (Regulation (EU) 2016/1103), and the answer can differ from the law of the country where the agreement was signed. An agreement that was perfectly valid where it was signed may also fall short of German requirements, or the reverse. Our family lawyers first establish which law applies and, where needed, work with partner firms abroad through the Primerus network. Where the marriage has ended or is ending across borders, our lawyers also advise on international divorce.

A challenge, or a dispute over validity in court, should usually be a last resort. The outcome depends heavily on evidence about events that may lie years in the past, and court proceedings take time and cost money. Where both spouses accept that the agreement no longer fits, they can amend or terminate it by a new notarized agreement instead. Where a separation is already underway, negotiations often end in a divorce settlement agreement (Scheidungsfolgenvereinbarung), which settles the consequences of the divorce in one document.

A well-founded challenge or validity argument still matters in these negotiations. A spouse who can show that the agreement would likely fail in court negotiates from a far stronger position. The same applies in reverse: if your spouse is challenging an agreement you rely on, an early assessment of its strengths and weaknesses shows whether it is worth defending or whether a negotiated solution is the better course. Business owners whose agreement protects a company can find more on how courts treat those provisions on our page on prenuptial agreements for business owners.

If you receive a notice of challenge, check first when it arrived and what grounds it relies on. A challenge made after the deadline has no effect, and the spouse making it generally has to prove the deception, threat, or mistake. Keep your own record of how the agreement came about, including when the draft was sent and whether your spouse had time to take independent advice, because the same evidence decides a dispute over validity.

In our experience, whether a prenuptial agreement can be set aside rarely turns on its wording alone. What usually decides the case is how the agreement came about, what each spouse knew when signing, and how the marriage developed afterward. Because a formal challenge must be made within strict deadlines, it is worth having the agreement reviewed as soon as doubts arise, not only once divorce proceedings begin.

At Schlun & Elseven Rechtsanwälte, our family law team reviews your existing prenuptial agreement, assesses which routes are open, and prepares and serves the notice of challenge where there are grounds for one. If your spouse is challenging an agreement you rely on, we assess its prospects and represent you in negotiations and before the family court. Where the agreement or the marriage has an international dimension, we first establish which law applies. 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.