What goes into a marital agreement?

What a marital agreement is made of

A marital agreement is put together from six building blocks, and few agreements need all of them. It opens with a preamble and then settles the property regime, the Versorgungsausgleich (pension rights adjustment) and post-marital maintenance. Where there is a foreign connection, a choice of law is added, and the closing provisions complete it.

The three middle blocks are the real levers. They match the three areas that the law, without an agreement, regulates the same way for every marriage. In exactly these three areas a marital agreement may depart from the law § 1408 BGB.

The preamble is regularly underestimated

The preamble describes the starting point: age, occupation, income and assets on both sides. It adds the reason for the agreement and the shared idea of how the marriage should run financially. It sets out no legal consequences, and yet it is often the most important part of the deed.

The reason lies in how courts review the agreement. Both stages of that review ask about the circumstances at signing and about the plans at the time, often fifteen years later. Without a preamble, it is one word against the other. With one, it is in black and white that both sides had the same expectation and what one side’s waiver was based on.

It also helps wherever something was agreed in return. A lump-sum payment, a property or ongoing contributions to a pension carry far more weight when the deed says what they were meant for.

The property regime block

The property regime is the block with the most room to maneuver. Four forms are available §§ 1408, 1414 BGB. The statutory Zugewinngemeinschaft (community of accrued gains) stays in place, while Gütertrennung (separation of property) switches the equalization off. Gütergemeinschaft (community of property) merges both estates and is rare in practice. And the modified regime takes individual assets out of the calculation or caps the equalization claim.

For businesses, professional practices and company shares, the modified regime is almost always the better fit. In these cases four points belong in the deed:

• Which assets are excluded, described precisely enough for a third party to identify them.
• Whether increases in value and replacement assets stay excluded as well, such as the proceeds of a later sale.
• Which method is used to value a business if it does fall into the calculation.
• How payment works: due date, installment amounts, interest and security.

One point expressly does not belong here. Before the property regime ends, neither spouse can commit to disposing of the future equalization claim § 1378 (3) sentence 3 BGB. Changing the rules of the Zugewinnausgleich (accrued gains) is allowed; disposing in advance of the claim that results from it is not. The line looks like hair-splitting, and in practice it costs entire clauses.

Which form fits you is covered in Excluding or modifying the equalization by marital agreement.

The pension rights adjustment block

Agreements on the Versorgungsausgleich (pension rights adjustment) are allowed § 6 (1) VersAusglG, but they must withstand a review of their content and of how they are relied on § 8 (1) VersAusglG. As long as nothing stands in the way of validity and enforcement, the Familiengericht (family court) is bound by the agreement § 6 (2) VersAusglG.

This block makes sense above all for short marriages, for roughly equal pension entitlements and for marriages in which both spouses keep working throughout. Where one side cares for the children and works part-time to do so, a full exclusion is the classic example of a clause that fails in court.

Between a full exclusion and the statutory default lie milder forms that often hold up better. The adjustment can be limited to certain entitlements, restricted to a specific period of the marriage or replaced by a lump-sum payment. More on this in When the pension rights adjustment does not apply.

The post-marital maintenance block

The maintenance part is the narrowest of the three, because it sits closest to the core of the law on the consequences of divorce. Maintenance for caring for children you have together is largely off limits, while maintenance for unemployment and top-up maintenance can be arranged much more freely.

What has proven effective is a cap, a time limit, a fixed basis of calculation and an opening clause in case you have children together. How these four arrangements look in detail is set out in Settling post-marital maintenance in a marital agreement.

The choice of law block

Only couples with a foreign connection need this block, and for them it is often the most valuable. Property law, divorce law and maintenance law are governed by three different regulations, and each allows its own choice of law within its own limits.

A foreign connection exists sooner than you might think. A foreign nationality is enough, and so is a year abroad at the start of the marriage or a vacation apartment across the border. The details are covered in Choice of law in a marital agreement for binational couples.

What does not belong in a marital agreement

Three points keep turning up in drafts and have no effect there.

Sorgerecht (custody) and contact cannot be fixed bindingly in case you separate in the future. The Familiengericht (family court) decides both based on the child’s best interests, and that standard looks at the situation at the time of the decision.

Child support belongs to the child, and nobody can waive it for the future § 1614 (1) BGB. The parents can still agree that one indemnifies the other between themselves, but that binds no one else.

Inheritance arrangements belong in a separate instrument. A waiver of inheritance or of the compulsory share is a contract of its own and must also be notarized §§ 2346, 2348 BGB. Both can be notarized at one appointment, and that makes sense; in substance they remain two matters that should be reviewed separately.

The closing provisions block

The closing provisions look like boilerplate, and yet they decide quite a lot in a dispute. Four clauses deserve attention.

• The condition. An agreement signed before the wedding should be made conditional on the marriage actually taking place. Without this clause, a deed remains in force whose basis no longer exists.
• The severability clause. It provides that the rest of the agreement stays valid if a single provision fails. It helps, but it does not decide anything on its own, because the court assesses the agreement as a whole.
• The review clause. Both sides commit to going through the agreement together at fixed intervals or after certain events, such as the birth of a child. It does not force any change, but it records that the agreement was meant to grow with the marriage.
• The costs. Who pays for the notary and for legal advice belongs in the deed. If the financially stronger side also pays for the other side’s advice, that is a strong argument against a later claim that independent advice was lacking.

Why templates from the internet fail at the same point

A template can supply the building blocks, but it cannot make the selection for you. The selection is where the work lies, and it later decides whether the agreement survives the court’s review of its content.

Our work with self-employed clients adds an observation you will not find in any template. Many shareholder agreements require the partners to have their spouse bound by a property arrangement and ask for proof of it. A partner who fails to provide that proof risks sanctions up to the compulsory redemption of their share. If you draft a marital agreement without the shareholder agreement next to it, you may be drafting past your own share.

Before we draft, we therefore need four things:

• a list of assets for both sides,
• the shareholder agreement if you hold company shares,
• the current pension statements for both sides,
• a short description of how the marriage should look financially.

This determines which building blocks you need and, with them, the transaction value on which the notary fee depends.