Forward-Looking Responsibility
The decision to enter into a marriage contract (prenuptial or postnuptial agreement) is an expression of forward-looking responsibility. Contrary to common clichés, it does not serve to create emotional distance; rather, it establishes legal clarity at a stage when both parties are still able to work out constructive and fair solutions together. Statutory standard regulations – particularly the German "community of accrued gains" (Zugewinngemeinschaft) – often prove inflexible and prone to dispute in the case of complex asset structures.
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DR. SCHMIDT LEGAL offers the profound expertise required to translate your individual life plans into a legally secure contractual framework.
Freedom of Contract and Its Limits
he central legal basis for marriage contracts is found in Section 1408 of the German Civil Code (BGB). According to this, spouses are free to regulate their matrimonial property relations by contract, or to abolish or modify the statutory matrimonial property regime.
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Formal Requirements and Validity
Pursuant to Section 1410 BGB, a marriage contract must be notarised in the simultaneous presence of both parties. This strict formal requirement serves as protection against over-hasty decisions. However, a word of caution: notarisation alone does not guarantee permanent validity. A marriage contract is subject to judicial review regarding its content and exercise. Contracts that disadvantage one partner unilaterally and without adequate compensation risk being deemed contrary to public policy (Section 138 BGB) and therefore void.
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DR. SCHMIDT LEGAL ensures that your agreements take into account the current case law of the Federal Court of Justice (BGH) in order to proactively prevent any future contestation.
Overview of Essential Key Clauses
1. Modification of the Matrimonial Property Regime (Accrued Gains)
Under the statutory default of "community of accrued gains" (Section 1363 BGB), assets acquired during the marriage are divided equally in the event of a divorce. This includes, for example, the increase in value of real estate. Typical modifications within a contract include:
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Modified Community of Accrued Gains: The regime is generally maintained, but specific assets (e.g., a specific property or business assets) are excluded from the equalisation process.
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Separation of Property (Gütertrennung): A complete separation of assets. This is often advisable to exclude mutual liability for a partner's debts during the division of property.
2. Post-Matrimonial Maintenance (Alimony)
Maintenance claims after divorce are often a source of protracted conflict. A marriage contract allows for the individual definition of the requirements, amount, and duration of maintenance.
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Important: While maintenance during the period of separation (until the divorce is final) cannot be effectively waived by law, a waiver or a cap is possible for the period thereafter – provided that this does not force either partner into a state of welfare dependency.
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3. Pension Equalisation (Pension Rights)
The division of pension rights acquired during the marriage can be modified or excluded entirely by contract (Section 6 VersAusglG). This is particularly relevant if both partners have independent, sufficient retirement provision or if compensation is provided through other assets (e.g., the transfer of real estate).
4. Private International Law (Choice of Law)
In a globalised world, many marriages have an international element. Without a contractual agreement, the EU Rome III Regulation determines which law applies in the event of a divorce. Through an explicit choice-of-law clause, you determine whether German law or the law of another state should apply, which is of crucial importance, particularly regarding real estate abroad.
Strategic Importance for Entrepreneurs and the Self-Employed
For business owners or freelancers, a marriage contract is an instrument for securing their livelihood. Without contractual modification, a high claim for the equalisation of accrued gains can endanger the company's liquidity and, in the worst case, lead to the sale or dissolution of the business.
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DR. SCHMIDT LEGAL drafts clauses that:
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Exclude business assets from the accrued gains.
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Isolate the increase in value of the company.
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Stagger or cap settlement payments to the partner to ensure the continued existence of the business.
Subsequent Amendments, Rescission, and Contestation
A marriage contract is not a rigid structure but must reflect the dynamics of your life circumstances.
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Amendment and Adjustment: In the event of significant changes (e.g., birth of children, unexpected wealth, or a partner giving up their career), the contract should be reviewed. A unilateral distribution of burdens that only arises years later can lead to invalidity.
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Contestation: Should you find that an existing contract unfairly disadvantages you and was concluded under duress or through deception, DR. SCHMIDT LEGAL will examine the options for contestation. Our goal is to establish the immorality of the agreement and assert your statutory claims (retroactively, if applicable).