Marital agreement after the wedding: what is still possible

Can a marital agreement be made after the wedding?

Yes, a marital agreement can be made at any time during the marriage, and it needs no particular reason. Spouses may arrange their property relations by contract while they are married § 1408 (1) BGB. The same formal rules apply as before the wedding: a notary records the agreement, and both of you are present at the same time § 1410 BGB.

This article deals with the first agreement made during a marriage. If you already have one, the question is how to change it, and that comes with traps of its own. They are described in Changing or canceling a marital agreement.

What happens to the gains accrued before the agreement

What happens to the gains made before the agreement depends on the property regime the agreement chooses. Until it is signed, you live in the Zugewinngemeinschaft (community of accrued gains), and the gains of those years already exist.

If you switch to Gütertrennung (separation of property), the Zugewinngemeinschaft (community of accrued gains) ends with the agreement. The gains up to that day are then equalized as they would be in a divorce § 1372 BGB. The equalization claim arises when the agreement is concluded § 1378 (3) sentence 1 BGB. The agreement should therefore state expressly what happens to that claim: whether it is quantified and paid, deferred or waived. Whether any of these solutions has tax consequences should be clarified before the notary appointment.

If you stay in a modifizierte Zugewinngemeinschaft (modified community of accrued gains) instead, the property regime does not end. The gains are still calculated only on divorce, and the agreement merely changes the rules of that calculation. It can therefore exclude a business or a property for the entire marriage, including any increase in value before the agreement. For most of the occasions that lead to an agreement, the modified regime is the simpler route. Both routes are compared in Excluding or changing accrued gains in a marital agreement.

Does an agreement made during the marriage hold up better?

An agreement made during the marriage often holds up better. No wedding date is pressing, and both of you know your incomes, assets and roles in the family instead of having to predict them. An agreement drawn up on that basis has fewer false assumptions to answer for later.

Still, the later date does not make an agreement safe on its own. A spouse who cut back at work for the children is often financially dependent on the other. An agreement that takes maintenance or the Versorgungsausgleich (pension rights adjustment) away from that spouse hits exactly the situation where courts look more closely. The same applies to an agreement signed under the threat of a separation. How courts review this is explained in When is a marital agreement invalid?

Typical occasions during the marriage

A marital agreement made during the marriage almost always has a specific trigger:

• An inheritance or a gift. The inheritance itself does not count toward the gains, but its increase in value does § 1374 (2) BGB. How much that can amount to is shown in Inherited family home: why only €30,000 of €500,000 count.
• Founding a company or taking a stake. If the articles of association or the partnership agreement require a marital agreement, a deadline is often running. More on this in Property regime clause: when shareholders need a marital agreement.
• Buying a home. If one of you puts in considerably more equity, part of it stays with the other in a divorce. How this can be arranged is described in Marital agreement when buying a home: if one brings more equity.
• Children. A marital agreement can also put the spouse who cuts back at work in a better position. Examples are a retirement plan in that spouse’s own name or maintenance beyond what the law provides.
• A move abroad. When your habitual residence changes, the law that applies to divorce and maintenance often changes with it; for the property regime, it usually does not. A choice of law fixes all three; see Choice of law in a marital agreement for binational couples.

And if you are already separated?

If you are already separated, the agreement is called a Scheidungsfolgenvereinbarung (divorce settlement agreement). It, too, needs a notary or a settlement recorded by the court if it covers the property regime or the Versorgungsausgleich (pension rights adjustment) § 7 (1) VersAusglG. So does an agreement on post-marital maintenance made before the divorce § 1585c sentence 2 BGB. The difference lies in the basis, because after the separation the circumstances are out in the open. What such an agreement covers is described on our page about the divorce settlement agreement.

How it works and what it costs

In the first consultation, we clarify the reason and whether you need to settle the property regime, the Versorgungsausgleich (pension rights adjustment) or maintenance. We then draft the agreement and coordinate it with you and, if you wish, with the other side. You both attend the notary appointment together; we prepare it and go there with you.

The notary fee follows the assets the agreement covers and is set by law. The details are in What does a marital agreement cost? The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How the further fees are calculated is set out under Costs.

Attorney Dietrich Karcher handles the property regime, business assets and real estate. Maintenance and the Versorgungsausgleich (pension rights adjustment) are handled by attorney Mieke Karcher. Our page on the marital agreement describes the framework as a whole.