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Prenuptial agreement
Settling post-marital maintenance in a prenuptial agreement
Freedom of contract is wide on the property regime and narrow on maintenance. This is where most prenuptial agreements that end up in court come apart. Anyone settling maintenance therefore needs to know how firmly each claim sits and which period is actually covered.
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 agreementCan post-marital maintenance be excluded by prenuptial agreement?
Spouses may settle maintenance for the period after divorce freely, up to a complete waiver § 1585c S. 1 BGB. That freedom ends where the arrangement hollows out the core area of divorce law and one spouse was in an inferior position at signing.
In practice this cuts two ways. A total waiver between two well-paid professionals who want no children usually holds. The same waiver in a marriage where one spouse raises the children and gives up work rarely survives judicial review.
Why separation maintenance stays out of reach
A prenuptial agreement does not reach (separation maintenance), even where the deed speaks of a comprehensive waiver of maintenance. Nobody can validly waive maintenance during separation for the future. Three cross-references lead there § 1361 Abs. 4 S. 4 BGB, § 1360a Abs. 3 BGB and § 1614 Abs. 1 BGB.
No other point causes more surprise in a first meeting. Clients arrive with an agreement headed “waiver of maintenance” and assume the matter is settled from the day one of them moves out. In fact the clause only covers the period from the divorce becoming final. Throughout the payments continue, often at a level nobody had budgeted for.
What applies during that phase is set out in Separation maintenance, how much and from when.
How firmly each type of maintenance sits
German law knows no single claim but several, and they differ in how far they can be contracted away. Their ranking comes from the core-area doctrine of the Federal Court of Justice BGH, judgment of 11 February 2004, XII ZR 265/02.
- Betreuungsunterhalt (childcare maintenance) § 1570 BGB is the most strongly protected claim. It serves the care of the shared child, and a waiver survives content review only in exceptional cases.
- Maintenance for old age and illness §§ 1571, 1572 BGB follow immediately. Both insure against risks that escape any planning.
- Unemployment maintenance and top-up maintenance § 1573 BGB sit considerably further out.
- Training maintenance and equity maintenance §§ 1575, 1576 BGB are the most readily waived.
An agreement that excludes everything in one sweep therefore reaches into the most stable and the weakest position at once. Settling each type separately costs little protection and gains a great deal of durability.
The levers below a full waiver
Between a complete waiver and the statutory default sit four arrangements that carry better in practice than an all-or-nothing clause.
- Cap the amount. A monthly ceiling, usefully tied to the consumer price index, keeps payments predictable and leaves the claim itself alive.
- Set a time limit. A fixed term, graduated by the length of the marriage and the number of children, picks up the statutory logic of time limitation § 1578b BGB and makes it foreseeable.
- Define the basis of calculation. Rather than arguing about need, the deed defines the relevant income, for instance as the average of the three years before separation. That spares a later dispute about bonuses, company cars and profit withdrawals.
- Add an opening clause for children. The waiver applies while the marriage remains childless; with the birth of a shared child, childcare maintenance revives at the statutory level.
That last arrangement is the most effective protection against later exercise review. It removes the very argument that carries most often in court, namely that the marriage ran quite differently from the plan at signing.
What a marriage-related disadvantage is and why it counts here
A is the lasting loss someone suffers because the marriage changed their working life, through part-time work, parental leave or a move to the other spouse’s place of work. Statutory time limitation of maintenance turns on exactly that measure § 1578b BGB.
For a prenuptial agreement this yields a simple test question. Where the planned marriage will foreseeably create no such disadvantages, a far-reaching maintenance arrangement carries. Where it will foreseeably create them, the agreement needs compensation, such as a settlement sum, a property, or a promise to keep paying pension contributions.
How time limitation works without an agreement is explained in Post-marital maintenance and when it ends.
Which form a maintenance arrangement needs
Every agreement on concluded before the divorce becomes final requires notarization § 1585c S. 2 BGB. Without that form it is void, and signatures from both sides change nothing.
Two routes replace the notary. A court settlement recorded before the trial court in matrimonial proceedings takes the place of notarization § 1585c S. 3 BGB in conjunction with § 127a BGB. And once the divorce is final, the agreement is possible without any form, which in practice is rarely the better choice.
The item that disappears with a waiver
Pension provision maintenance depends on an existing claim to maintenance. Where someone can claim under §§ 1570 to 1573 or § 1576 BGB, the cost of adequate insurance against old age and reduced earning capacity also counts toward their needs § 1578 Abs. 3 BGB. This item is owed on top of basic maintenance, and in the calculation it makes up a noticeable share.
Exactly that dependency makes it vulnerable. A blanket waiver of maintenance quietly takes the item with it, because where the underlying claim falls away, so does the provision hanging off it.
For the spouse who pays little or nothing into the pension scheme while raising children, two gaps therefore add up. Current payments are lost and so is the build-up of pension rights of their own, and both land thirty years later.
Where a far-reaching waiver is nonetheless intended, the agreement needs a separate promise as compensation, such as an undertaking to pay contributions into a private pension policy for the other side during the caring years. That clause costs the paying spouse comparatively little and adds considerably to the agreement’s durability.
Why child maintenance does not belong here
Parents cannot dispose of their child’s maintenance in a prenuptial agreement to the child’s detriment. Nobody can waive maintenance between relatives for the future § 1614 Abs. 1 BGB, and the claim belongs to the child anyway, represented by the parent providing care.
An arrangement between the parents themselves remains possible, such as an undertaking to indemnify the other against claims. Externally that binds nobody. How the amount is calculated is set out in Child maintenance and the Düsseldorf table.
What a durable maintenance part looks like
A durable maintenance part names each type of claim separately and leaves childcare maintenance untouched. Remaining claims are capped and time-limited. And a recital records the shape of the marriage both sides assumed at signing. That is more work than a single sentence about a mutual waiver, and it is the difference between a deed and an arrangement that works when it matters.
Which limits apply to the other two levers is covered in Excluding the equalization of accrued gains and When the pension rights adjustment falls away.
Maintenance, the pension rights adjustment and everything involving children are handled in this firm by Mieke Karcher. Bring to the first meeting how your marriage is meant to look economically, meaning who works how long and who takes on the care. The workable arrangement follows from that plan. 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.