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Prenuptial agreement
Can you make a prenuptial agreement without a notary?
This question almost always comes from the same place, because notary fees look like an avoidable item. The short answer is no. The longer one is more interesting, because it shows which arrangements between spouses do work without a deed and where exactly the line runs.
Karcher Rechtsanwälte in Frankfurt am Main, Germany, focusing on uncontested divorce and international family law. Advice in German, English and Spanish.
Part of our guide Prenuptial agreementIs a prenuptial agreement without a notary valid?
No. A prenuptial agreement has to be concluded before a notary and recorded by him, with both parties simultaneously present § 1410 BGB. Miss that form and the agreement is void § 125 S. 1 BGB, void from the outset and beyond repair.
What the statute means is full notarization, so reading aloud, advice, and recording by the notary. Certification of signatures does not suffice, nor does a private text carrying two signatures. Witnesses replace nothing either.
What simultaneous presence means in practice
Simultaneous presence calls for a single act of notarization rather than the physical presence of both spouses on site. Ruled out is the separate notarization of offer and acceptance in two deeds, which general law otherwise permits § 128 BGB.
Representation stays possible under the general rules §§ 164 ff. BGB. Anyone living abroad or unable to attend can be represented. Their representative then appears for them at the same appointment. A carefully drafted power of attorney is needed for this. It is no shortcut, though it does solve the most common scheduling conflict for binational couples.
A prenuptial agreement notarized abroad can satisfy the form. Whether it does depends on the law of the place of notarization and on whether that procedure is equivalent to the German one. What gets examined is whether the foreign notary performs the same task as a German one, meaning drafting the content, advising, and reading the deed aloud. That examination belongs before the signature, never once separation has begun.
Which arrangements need the same form
Notarization is not confined to the property regime. Four further arrangements that typically sit in the same deed are subject to a form requirement in their own right:
- Agreements on the (pension rights adjustment) require notarization where they are concluded before the decision on the pension split becomes final § 7 Abs. 1 VersAusglG. Inside a prenuptial agreement the form of § 1410 BGB applies anyway § 7 Abs. 3 VersAusglG.
- Agreements on before the divorce becomes final, likewise § 1585c S. 2 BGB.
- Undertakings to transfer or acquire real property § 311b Abs. 1 BGB.
- Undertakings to transfer present assets or a fraction of them § 311b Abs. 3 BGB.
That last point catches prenuptial agreements more often than it sounds. Promising in the deed to transfer “half of my assets” to the other spouse triggers exactly this form.
Why the statute calls for a notary at all
Mandatory notarization protects both sides from themselves. It serves three purposes, and a signed sheet of paper serves none of them.
As a warning function it makes sure nobody gives up claims in passing that will carry serious weight decades later. In its advisory function it obliges the notary to establish what both sides want, to clarify the facts, and to explain the implications of what they declare. As an evidentiary function it records who declared what and when. Fifteen years into a dispute that is worth more than any recollection.
For the durability of an agreement the second purpose counts most. Courts ask about the negotiating position at signing, and a cleanly documented notarization is the best evidence available. What gets examined there is covered in When is a prenuptial agreement invalid?.
When a court replaces the notary
A court settlement replaces notarization where the declarations are taken into a court record § 127a BGB. For maintenance and for the pension rights adjustment the respective provisions say so expressly § 1585c S. 3 BGB and § 7 Abs. 2 VersAusglG.
In practice this route gets used at the divorce hearing itself. Couples who only reach agreement once proceedings are running have the arrangement recorded there and genuinely save the notary fee. For a precautionary prenuptial agreement that is no help, because at that point no proceedings exist in which anything could be recorded.
What can still be settled at that later stage is described on our page about the divorce settlement agreement.
What happens when the form is missing
An agreement void for want of form has no effect on the property regime whatsoever. The statutory regime of the Zugewinngemeinschaft (community of accrued gains) then applies from the outset, with every consequence for equalization, inheritance and tax that the agreement was meant to avoid.
This defect cannot be cured. For a contract of sale of land the statute provides for cure through conveyance and registration § 311b Abs. 1 S. 2 BGB. Nothing comparable exists for prenuptial agreements, and decades of living by the terms of the deed change nothing.
What still works without a notary
Not every arrangement between spouses is a prenuptial agreement. Free of any form and fully effective are, among others, four arrangements:
- dividing and jointly acquired items,
- splitting joint accounts and securities portfolios,
- an arrangement about using the during separation,
- the level of current , as long as it holds no waiver for the future.
So if you only want to sort out furniture, accounts and a shared car, you need neither a notary nor us. A written text signed by both is enough, and it saves a considerable part of the later argument.
Only where an arrangement reaches into the property regime, the pension rights adjustment or post-marital maintenance does the line run. From that point on nothing helps but the deed. For everything before it, paper that both sign and each keeps will do.
Why home-made agreements still turn up
Clients regularly produce a self-drafted “marital agreement” at the first meeting, neatly worded, signed by both, occasionally even witnessed. As a prenuptial agreement it is worthless. Entirely worthless it is not, because it evidences what both sides had agreed at the time, and that paper can carry weight in a later negotiation.
Nobody should rely on it. Have the same arrangement notarized and you have something enforceable; leave it, and you have an argument.
Why comparing prices gets you nowhere
Under the German Court and Notary Fees Act the notary fee is identical for every notary in Germany. It follows the transaction value, meaning the assets the agreement settles, and it cannot be negotiated. The only lever sits in how the agreement is cut, meaning how much wealth the deed takes in at all.
How the fee is calculated in detail is set out in What does a prenuptial agreement cost?. Which building blocks a deed needs is covered in What goes into a prenuptial agreement?.
We prepare the prenuptial agreement, draft it and accompany you to the notary appointment; the notary notarizes. Bring to the first meeting what is to be protected, so a business, a property, an inheritance or pension rights. The cut of the deed follows from that, and with it the price. We advise in German, English and Spanish.
Attorney at law · focus on family law
Admitted since 2010, more than fifteen years of experience in advising and representation. The contact for new instructions at Karcher Rechtsanwälte in Frankfurt-Gallus.
Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.