Marital agreement made abroad: is it valid in Germany?

Is a marital agreement made abroad valid in Germany?

A marital agreement made abroad can also be valid in Germany. Where it was signed matters little. Three questions count, in a fixed order: which law governs the agreement, whether its form is sufficient and whether its content holds up.

A German court answers the first question under the European Matrimonial Property Regulation. It applies in most EU states, but not in all of them: Poland and Ireland, for example, do not apply it. It can also point to the law of a state outside the EU Art. 20 EuGüVO. So an agreement from the United States or Dubai falls under it just as much as one from Spain.

Which law governs the agreement

The property regime is governed first of all by the law you chose in the agreement. The options are the law of a state where one of you lives, or the law of a state of which one of you is a national Art. 22 EuGüVO.

Without a choice of law, what applies above all is the law of the state where you had your first shared habitual residence after the wedding Art. 26 EuGüVO. A later move does not, as a rule, change that. So if you married in New York and lived there first, you will usually remain under New York property law, even in Frankfurt.

For marriages entered into before January 29, 2019, with no choice of law made since, older rules apply. They look first to your common nationality Art. 69 (3) EuGüVO. How they work in detail is explained in Foreign assets and accrued gains: which property law applies.

Does a foreign marital agreement meet the formal requirements?

At a minimum, the agreement must be in writing, dated and signed by both of you Art. 25 (1) EuGüVO. Added to this are the formal requirements of the state where you lived when you concluded it, provided that state applies the regulation. The formal requirements of the law that governs the property regime apply as well Art. 25 (2) and (3) EuGüVO.

For Germany, this means:

• If you both lived in Germany when you concluded the agreement, it has to be recorded by a notary with both of you present at the same time § 1410 BGB, even if it was signed abroad. The same applies if only one of you lived here and the other lived in a state that does not apply the regulation.
• Where German law governs the property regime, this form is required as well.
• Having your signatures certified by a notary public, as is common in the United States, does not replace notarial recording. Whether a deed from a foreign notary is enough depends on whether that notary’s procedure is equivalent to the German one.

If neither of you lived in a state that applies the regulation and foreign law governs the property regime, that law decides on any further formal requirements. That is as far as European and German law go.

If you married before January 29, 2019 and have not chosen a law since, older rules apply to the form as well. Under them, the form of the place where the agreement was concluded is sufficient Art. 11 (1) EGBGB.

Does the content of a foreign marital agreement hold up?

When German law governs the property regime, the court reviews the agreement like any German one: once as of the day it was concluded and once as of the day one side relies on it. How this review of the content works is described in When is a marital agreement invalid?.

Two points come up more often with foreign agreements. Their clauses come from a different legal system and have to be translated into German legal concepts. One example is a blanket waiver of “all claims to the other’s assets.” And it matters whether both sides understood the text. More on this in A marital agreement in English: possible with a German notary?.

Where foreign law governs the property regime, that law decides on the content. A German court then only steps in if the result would be manifestly incompatible with fundamental principles of German law Art. 31 EuGüVO.

Maintenance and the pension rights adjustment follow their own rules

Whether the property part of the agreement holds up says nothing about whether a waiver of maintenance in the same agreement holds too. If the spouse claiming maintenance now lives in Germany, German maintenance law usually applies, unless there is a valid choice of law Art. 3 HUP. For spousal maintenance, one side can object that the marriage has a closer connection to another state Art. 5 HUP.

The court only carries out the Versorgungsausgleich (pension rights adjustment) on its own initiative if German law governs the divorce. Otherwise, it takes place on application if one side acquired German pension rights during the marriage and carrying it out would not be inequitable Art. 17 (4) EGBGB. Whether a waiver of it in a foreign agreement holds up needs to be examined separately. How the property regime, the divorce and maintenance can be kept apart is shown in Choice of law in a marital agreement for binational couples.

What you can do if doubts remain

Conclude the agreement anew, this time before a German notary. Spouses may conclude a marital agreement at any time § 1408 (1) BGB. The new agreement can confirm the old terms, adapt them to German law and make a choice of law. That means paying for a notarial deed, but it removes an uncertainty that would otherwise only surface in a dispute.

If you still live abroad, a German embassy or consulate can also record the agreement, provided it offers notarial services. Its deed has the same standing as one from a German notary § 10 (2) KonsG.

An invalid old agreement means you have been living under the statutory property regime all along. What a new agreement then means for the increase in your assets over past years is covered in Marital agreement after the wedding: what is still possible.

What to bring to the consultation

Please bring:

• the original agreement and, if you have one, a translation,
• the date and place of the wedding,
• where you lived at the time of the wedding, in the period after it and when the agreement was concluded,
• your nationalities at each of these points in time.

At our firm, attorney Dietrich Karcher handles property regimes and assets, and attorney Mieke Karcher handles maintenance and the Versorgungsausgleich (pension rights adjustment). 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 further fees are calculated is set out under Costs. Our page on international family law describes the framework for cases with a foreign element.