Can a marital agreement be made without a notary?

Is a marital agreement without a notary valid?

No. A marital agreement has to be recorded by a notary with both parties present at the same time § 1410 BGB. If this form is not met, the agreement is void § 125 sentence 1 BGB, from the outset and with no way to cure it.

What this means is full notarization: the notary reads the deed aloud, explains it and records it. Certification of signatures is not enough, and neither is a private document with two signatures. Having witnesses present does not replace anything either.

What simultaneous presence means in practice

Simultaneous presence requires a single act of notarization, not that both spouses are physically there in person. What it rules out is notarizing the offer and the acceptance separately in two deeds, as general law otherwise allows § 128 BGB.

Representation remains possible under the general rules §§ 164 et seq. BGB. If you live abroad or cannot make the appointment, someone can represent you. Your representative then appears for you at the same appointment. This requires a carefully drafted power of attorney. It is not a shortcut, but it solves the most common scheduling conflict for binational couples.

A marital agreement notarized by a notary abroad can satisfy the form. Whether it does depends on the law of the place where it is notarized and on whether that procedure is equivalent to the German one. The question is whether the foreign notary performs the same task as a German notary: drafting the content, explaining it and reading the deed aloud. This check belongs before the signature, never only once you separate.

Why the law requires a notary at all

Mandatory notarization protects both sides from themselves. It serves three purposes, and a signed sheet of paper fulfills none of them.

Its warning function makes sure nobody gives up claims in passing that will carry real weight decades later. Its advisory function obliges the notary to find out what both sides want, clarify the facts and explain the implications of their declarations. Its evidentiary function records who declared what and when. In a dispute fifteen years later, that is worth more than anyone’s memory.

For whether the agreement holds up, the second purpose matters most. When reviewing its content, courts look at the bargaining situation when it was signed, and a well-documented notarization is the best evidence of that. What the courts examine is covered in When is a marital agreement invalid?.

What happens if the form is missing

A marital agreement void for lack of form has no effect at all on the property regime. The statutory regime of the Zugewinngemeinschaft (community of accrued gains) then applies from the outset, with all the consequences for equalization, inheritance and tax that the agreement was meant to avoid.

This defect is never cured. For a contract to sell land, the law provides a cure through conveyance and registration § 311b (1) sentence 2 BGB. There is nothing comparable for a marital agreement, and even decades of living by the terms of the document change nothing.

Which agreements need the same form

The notarization requirement does not stop at the property regime. Four further arrangements that typically appear in the same deed each require this form in their own right:

• Agreements on the Versorgungsausgleich (pension rights adjustment) must be notarized if they are made before the decision on the adjustment becomes final § 7 (1) VersAusglG. If they are part of a marital agreement, the form of § 1410 BGB applies in any case § 7 (3) VersAusglG.
• Agreements on post-marital maintenance made before the divorce becomes final, likewise § 1585c sentence 2 BGB.
• Obligations to transfer or acquire real estate § 311b (1) BGB.
• Obligations to transfer your present assets or a fraction of them § 311b (3) BGB.

The last point affects marital agreements more often than it sounds. If you promise in the agreement to transfer “half of my assets” to your spouse, you trigger exactly this form.

When the court takes the place of the notary

A court settlement replaces notarization if the declarations are entered in a court record § 127a BGB. For maintenance and the Versorgungsausgleich (pension rights adjustment), the relevant provisions say so expressly § 1585c sentence 3 BGB and § 7 (2) VersAusglG.

In practice, this route is used at the divorce hearing itself. Couples who only reach agreement once proceedings are underway have the arrangement recorded there and really do save the notary fee. For a marital agreement made in advance, this does not help, because at that point there are no proceedings in which anything could be recorded.

What can still be settled at that later stage is described on our page on the divorce settlement agreement.

What remains valid without a notary

Not every arrangement between spouses is a marital agreement. Four arrangements, among others, remain valid without any formality:

• dividing household goods and things you bought together,
• dividing joint accounts and securities portfolios,
• an agreement on who uses the marital home during the separation,
• the amount of ongoing separation maintenance, as long as it contains no waiver for the future.

So if all you want is to sort out furniture, accounts and what happens to a shared car, you need neither a notary nor us. A written text signed by both of you is enough, and it spares you a good part of the argument later on.

The line only runs where an arrangement reaches into the property regime, the Versorgungsausgleich (pension rights adjustment) or post-marital maintenance. From that point on, only a notarial deed will do. For everything short of that, a document that you both sign and each keep a copy of is enough.

Why self-written agreements still turn up

Again and again, clients bring a self-drafted “marital arrangement” to the first consultation: neatly worded, signed by both, sometimes even witnessed. As a marital agreement, it is worthless. It is not entirely worthless, though, because it shows what both sides agreed on at the time, and that document can carry weight in later negotiations.

Nobody should rely on it. If you have the same arrangement notarized, you can enforce it; if you don’t, you have an argument.

Why comparing prices gets you nowhere

Under the German Court and Notary Fees Act, the notary fee is the same for every notary in Germany. It depends on the transaction value, meaning the assets the agreement covers, and it cannot be negotiated. The only lever is the scope of the agreement, meaning how much of your assets the deed covers at all.

How the fee is calculated in detail is explained in What does a marital agreement cost?. Which components a deed needs is covered in What goes into a marital agreement?.