Changing or cancelling a prenuptial agreement

Can a prenuptial agreement be changed afterwards?

Yes. Spouses may rearrange their property relations at any time during the marriage and cancel or change an existing regime § 1408 Abs. 1 BGB. No deadline applies, and no reason has to exist.

A change takes the same form as the original agreement, so notarization with both parties simultaneously present § 1410 BGB. An addendum on a separate sheet, by email, or with two signatures under a self-drafted text is void.

When an existing agreement is due for review

A prenuptial agreement describes the economic position and the plan at the time of notarization. Where both shift considerably, the risk grows that one side will later invoke exercise review. Five occasions come up most often:

• A child arrives. The most frequent occasion and the most important, because childcare maintenance now enters the picture.
• The business changes hands. A succession, a sale or new shareholders alter the very value the agreement was meant to protect.
• A property is added, especially where both are on the land register and only one services the loan.
• The residence moves abroad. With it the applicable property law may change, and so may jurisdiction for later proceedings.
• The roles swap. Whoever was economically stronger at signing is not necessarily still stronger ten years on.

Such an appointment rarely takes long. Often a short addition suffices, such as an opening clause for childcare maintenance, to reconnect the agreement to the marriage as it is lived.

The first trap: cancelling does not restore the statutory regime

Cancel a prenuptial agreement without replacing it and you do not land back in the statutory regime automatically. Where spouses cancel or exclude the statutory regime, separation of property takes effect unless the agreement provides otherwise § 1414 BGB. The same applies where only the equalization of accrued gains is excluded.

A return to the community of accrued gains therefore has to be agreed expressly. A sentence reading “the prenuptial agreement of … is cancelled” does not do it; the deed has to state positively that the statutory regime applies from now on.

A second question hangs on this and gets overlooked easily. Initial assets are the assets a spouse owns when the regime begins § 1374 Abs. 1 BGB. Switch from separation of property into the community of accrued gains after twelve years of marriage and the accrued gain starts counting only from that day. Everything built up before stays outside. Where an earlier reference date is meant to apply, that belongs expressly in the deed.

The second trap: effect on third parties

Since 1 January 2023 the matrimonial property register no longer exists. It had been in place since 1900 and was abolished without replacement by the Act abolishing the matrimonial property register. In its place came a rule modelled on European property law Art. 28 EuGüVO.

Since then spouses can raise objections from their prenuptial agreement against a third party only where that third party knew of the agreement or failed to know of it through gross negligence § 1412 BGB. What counts is the moment of the respective transaction.

For the self-employed this means something very practical. The registration that used to reach every third party is gone, so the information has to reach the contracting partner by another route. Anyone wanting to rely on their separation of property discloses it actively to the financing bank, to the landlord of the business premises and to a co-shareholder, and documents having done so. Without that evidence the finest deed helps little in a dispute with a creditor.

Can one spouse terminate the agreement alone?

No. A prenuptial agreement is a contract, and like any contract it can only be changed or cancelled by consent. German law knows no unilateral right of termination here, and a termination clause would sit awkwardly with the purpose of the agreement.

Anyone wanting out alone has three routes, and all three are steep. Rescission for fraudulent misrepresentation or unlawful duress § 123 BGB requires exactly that and is subject to a deadline. Frustration of contract § 313 BGB bites only where the shared assumptions have shifted fundamentally. And judicial content review takes effect in the divorce proceedings, so late.

Which standards apply there is covered in When is a prenuptial agreement invalid?.

When assets are the reason for a switch

A change of property regime has a tax background alongside the family law one. Where the community of accrued gains is ended during the spouses’ lifetime, the resulting equalization claim does not count as a taxable acquisition § 5 Abs. 2 ErbStG. Assets can be moved between spouses this way without gift tax arising.

This arrangement is known as the Güterstandsschaukel (property regime swing) and is tied to conditions that need examining in detail on the tax side. We say openly where our role ends. The family law part is ours, meaning the switch itself and the calculation of the equalization claim. Tax assessment belongs in the hands of a tax adviser. Both should be coordinated before the notary appointment.

When it becomes a divorce settlement agreement

After separation the name of the deed changes and with it the standard. The same three areas are then settled in a Scheidungsfolgenvereinbarung (divorce settlement agreement), so property regime, pension rights adjustment and maintenance. Often the matrimonial home, household goods and the allocation of debts come with them.

Their difference lies in the review. A precautionary prenuptial agreement works with a forecast of how the marriage will run, and that forecast can turn out wrong. During separation the facts lie open instead, and both sides know income, assets and the caring arrangement. An agreement built on that basis holds up better than one written fifteen years earlier into the future.

An existing prenuptial agreement has not become worthless. It forms the negotiating basis the settlement builds on, and whatever it settles validly needs no renegotiation. What that later deed covers is described on our page about the divorce settlement agreement.

What a change costs

Notary fees for a change follow the same logic as for the first agreement. They depend on the transaction value, meaning the assets the new deed settles, and they are fixed by statute. A change is therefore no cheap addendum but gets billed like an agreement of its own.

One practical piece of advice follows. Anyone considering adjustments in two places should settle both at one appointment rather than notarizing twice. How the fee arises in detail is set out in What does a prenuptial agreement cost?, and which building blocks a deed should carry in What goes into a prenuptial agreement?.

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.