A prenuptial agreement allows for individual arrangements regarding the matrimonial property regime, pension equalisation, and maintenance. This article explains what a prenuptial agreement may contain and why notarisation is required by law.
Statutory Formal Requirement
Pursuant to § 1410 BGB, a prenuptial agreement must be concluded in the presence of both spouses (or future spouses) and notarised by a notary. Without notarisation, the prenuptial agreement is void. This formal requirement serves to protect both parties from hasty or uninformed decisions.
What Can Be Regulated in a Prenuptial Agreement?
A prenuptial agreement can govern various aspects of married life and a potential divorce:
Matrimonial Property Regime
Without a prenuptial agreement, the statutory matrimonial property regime of community of accrued gains (§ 1363 BGB) applies. A prenuptial agreement may instead provide for:
- Separation of property (§ 1414 BGB): Each spouse retains their assets entirely separately. No equalisation of accrued gains upon divorce.
- Community of property (§ 1415 ff. BGB): The assets of both spouses become joint property. Rarely chosen in practice.
- Modified community of accrued gains: The statutory property regime is retained, but individual aspects are adjusted (e.g. exclusion of certain assets from the equalisation of accrued gains).
Pension Equalisation
Pension equalisation governs the division of pension entitlements acquired during the marriage. The prenuptial agreement may exclude or modify pension equalisation. However, a complete exclusion is only valid under certain conditions and must not result in one-sided disadvantage.
Post-marital Maintenance
Maintenance arrangements can be modified in the prenuptial agreement. It should be noted that a complete waiver of maintenance -- particularly to the detriment of the economically weaker spouse -- is subject to judicial review and may be held invalid.
When Is a Prenuptial Agreement Particularly Relevant?
Certain life situations suggest entering into a prenuptial agreement:
- Entrepreneurs and self-employed persons: An equalisation of accrued gains may jeopardise the continued existence of the business. Excluding the business from the equalisation can protect it.
- Unequal financial circumstances: Where one spouse brings substantial assets into the marriage, a prenuptial agreement can provide clarity on the division of assets.
- International marriages: For spouses of different nationalities, the choice of law in the prenuptial agreement can eliminate uncertainty about the applicable law.
- Dual-income couples without children: Where both spouses are financially independent, the statutory equalisation rules may be perceived as inappropriate.
- Blended families: Complex family situations frequently require individual arrangements.
Limits of Contractual Freedom
Contractual freedom in prenuptial agreements is not unlimited. According to the case law of the Federal Court of Justice (Bundesgerichtshof), prenuptial agreements are subject to judicial review:
- Validity review (§ 138 BGB): A prenuptial agreement is immoral and void if it is objectively one-sidedly disadvantageous at the time of conclusion and is based on an unequal bargaining position (e.g. pregnancy, economic dependency).
- Exercise review (§ 242 BGB): Even a prenuptial agreement that was valid at the time of conclusion may be inapplicable in the event of divorce if circumstances have materially changed and reliance on the agreement would be contrary to good faith.
The Procedure at the Notary
The notary drafts the prenuptial agreement based on the wishes and intentions of both spouses. At the notarisation appointment, the notary reads out the agreement, explains the significance of each provision, and draws attention to the legal consequences. The notary is obliged to remain neutral and must ensure that neither spouse is unfairly disadvantaged.
Costs
Notary fees are based on the net assets of both spouses. A 2.0 fee under the GNotKG applies. For combined net assets of 500,000 euros, the costs amount to approximately 2,370 euros plus disbursements and VAT.
Timing
A prenuptial agreement can be concluded both before and during the marriage. An early arrangement is recommended, as entering into an agreement during a marital crisis increases the risk of an unequal negotiating situation.
