A prenuptial agreement (“Ehevertrag”) can be a helpful tool for couples to adjust the legal and financial circumstances of spouses. Prenuptial agreement rules become particularly relevant in the event of separation or divorce. However, it is often overlooked that a prenuptial agreement is not only important when a separation is imminent. It can also provide clarity during a marriage. But when does a marriage contract make sense? What provisions are conceivable in such contract, and what formal requirements must be observed for the contract to be legally effective?

1. When should a marriage contract be considered?

A prenuptial agreement is understood to be a deviation from the rules of the statutory matrimonial property regime under German law (known as community of accrued gains = “Zugewinngemeinschaft”). The statutory matrimonial property regime applies automatically when a couple gets married. According to the applicable law, the gains (= increase in assets) accumulated during the marriage are divided between the partners in the event of divorce. The same applies to pension rights acquired during the marriage (known as pension rights equalisation (“Versorgungsausgleich”), which refers, for example, to pension entitlements). In addition, maintenance claims (“Unterhaltsansprüche”) may exist depending on the individual case. If the statutory rules are not to apply or are not to apply in full in the event of a separation, they can be modified by means of a marriage contract. 

There are classic situations in which the conclusion of a marriage contract is regularly considered:

• Entrepreneurial activities: A marriage contract may be considered if one or both partners are entrepreneurs. Company values can increase significantly during the marriage but this value is tied up in the company. In the event of a separation, claiming equalisation of accrued gains can therefore lead to liquidity problems for the spouse burdened with the claim. In the worst case, this can jeopardise the existence of the company. A prenuptial agreement can help here by mitigating the consequences, e.g. through reduced compensation payments or instalment payments.  

• Differences in financial capacity: If there are significant differences in the financial circumstances of the spouses, this may also be a reason to consider entering into a prenuptial agreement. This applies, for example, if certain assets have been in the family for a long time and are to remain so, or if a specific succession of assets is to be ensured. In addition, claims to be accrued gains can be particularly large in cases of high pre-marital assets. Here, too, there may be an interest in modification.

• Conflict between marriage law and inheritance law: A marriage contract can also serve to ensure that the desired inheritance consequences are not jeopardised by marriage. Since spouses are entitled to a statutory share of the inheritance or compulsory portion, this can lead to a conflict with inheritance law. One example of this is in blended families, where remarriage could jeopardise the desired succession.

2. Common provisions in a marriage contract

A marriage contract offers a wide range of options that can be tailored to the individual needs of the spouses. It is possible to switch to a completely different matrimonial property regime. In addition, the rules of the statutory matrimonial property regime of equalisation of accrued gains can be adapted through targeted modifications. In this case, it is not referred to as a change in the matrimonial property regime, but rather as a modified equalisation of accrued gains:

• Separation of property (“Gütertrennung” – § 1414 BGB): If separation of property is agreed, there is no equalisation of accrued gains in the event of divorce. However, the agreement on separation of property has no effect on pension rights equalisation or maintenance claims without further regulation. 

• Community of property (“Gütergemeinschaft” – §§ 1415 et seq. BGB): In a community of property, at least part of the spouses’ assets are combined. For this purpose, three different asset pools are formed between the spouses (joint property, separate property, reserved property). Today, community of property is rarely the preferred option, but it was frequently agreed upon in connection with agricultural businesses in the past.

• Modified community of accrued gains (“Modifizierte Zugewinngemeinschaft”): Switching to the matrimonial property regimes of separation of property or community of property has adverse consequences in inheritance law and inheritance tax law. For this reason, a complete change of matrimonial property regime to separation of property or community of property is now rarely the preferred option. Usually, certain rules of the community of accrued gains are modified individually, e.g. certain assets are excluded from the accrued gains or maintenance claims are limited. The admissibility of the adjustments depends on the individual case.

3. Formal requirements for the marriage contract

For a marriage contract to be valid, it must be notarised. A simple written agreement between the spouses is not sufficient. As part of the notarisation, the consequences of the provisions of the marriage contract must be explained. In addition, unbalanced contractual provisions must be avoided, which the notary must pay particular attention to during the notarisation process.

Conclusion: The marriage contract as a preventive measure

A marriage contract is more than just a document for the event of a divorce – it is a preventive instrument that helps partners to clearly regulate their legal and financial affairs. Particularly in cases of unequal financial circumstances, entrepreneurial activities or special inheritance situations, a marriage contract can be an important tool for avoiding unwanted consequences or disputes.

Useful links (in German):

Information on marriage law from the Federal Ministry of Justice: https://www.bmj.de/SharedDocs/Publikationen/DE/Broschueren/Eherecht.pdf?__blob=publicationFile&v=15