What goes into a prenuptial agreement?

What a prenuptial agreement is made of

A prenuptial agreement is assembled from six building blocks, and few agreements need all of them. It opens with a recital and then settles the property regime, the pension rights adjustment and post-marital maintenance. Where there is a foreign element a choice of law joins them, and the closing provisions round it off.

Those three middle blocks are the actual levers. They correspond to the three areas the statute regulates identically for every marriage where no agreement exists. In exactly those three areas a prenuptial agreement may deviate § 1408 BGB.

The recital gets underrated

A recital describes the starting position, so age, occupation, income and assets on both sides. Added to that come the occasion for the agreement and the shared idea of how the marriage is meant to run economically. It orders no legal consequences, and it is still often the most important part of the deed.

Its value lies in the judicial review. Both stages ask about the circumstances at signing and about the plan back then, frequently fifteen years later. Without a recital it becomes one account against another. With it there is written evidence that both sides held the same expectation and what one side’s waiver was based on.

It is useful too wherever consideration was agreed. A settlement sum, a property or a running contribution to a pension policy reads far more convincingly where the deed says what it was meant for.

The property regime block

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

For businesses, professional practices and shareholdings, modified accrued gains are almost always the better fit. In those cases four points belong in the deed:

• Which values are taken out, named precisely enough for a third party to identify them.
• Whether increases in value and substitutes for those values also stay outside, such as the proceeds of a later sale.
• Which method values a business where it does fall into the calculation.
• How payment works, so maturity, instalments, interest and security.

One point expressly does not belong here. Before the property regime ends, no spouse may undertake to dispose of the future equalization claim § 1378 Abs. 3 S. 3 BGB. Changing the rules of the equalization is permissible; disposing in advance of the claim arising from it is not. That line looks pedantic and costs whole clauses in practice.

Which form fits is covered in Excluding or modifying the equalization of accrued gains.

The pension rights adjustment block

Agreements on the pension rights adjustment are permissible § 6 Abs. 1 VersAusglG but have to survive content and exercise review § 8 Abs. 1 VersAusglG. As long as no obstacles to validity or enforcement exist, the family court is bound by the agreement § 6 Abs. 2 VersAusglG.

This block makes sense above all for short marriages, for roughly equal entitlements, and for marriages where both stay in continuous employment. Where one side raises the children and works part-time for that reason, a full exclusion is the classic among clauses that fall in court.

Between exclusion and the statutory default sit milder forms that often carry better. The adjustment can be limited to particular entitlements, confined to a defined period of the marriage, or replaced by a settlement payment. More on that in When the pension rights adjustment falls away.

The post-marital maintenance block

Maintenance is the tightest of the three, because it sits closest to the core area of divorce law. Childcare maintenance for shared children stays largely beyond arrangement, while unemployment and top-up maintenance can be settled far more freely.

What has proved itself is a cap, a time limit, a defined basis of calculation, and an opening clause for the case that shared children arrive. How those four arrangements look in detail is set out in Settling post-marital maintenance in a prenuptial agreement.

The choice of law block

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

A foreign element exists sooner than expected. A second nationality suffices, as does a year abroad at the start of the marriage or a holiday flat across the border. Details are covered in Choice of law in a prenuptial agreement for binational couples.

The closing provisions block

Closing provisions look like boilerplate and still decide a good deal in a dispute. Four clauses repay attention.

• The condition. An agreement concluded before the wedding sensibly stands under the condition that the marriage is actually entered into. Without it a deed survives whose basis has fallen away.
• The severability clause. It orders that the rest of the agreement stays valid where a single provision falls. It helps, yet decides nothing on its own, because a court assesses the agreement as a whole.
• The review clause. Both sides undertake to go through the agreement together at fixed intervals or after defined events, such as the birth of a child. It compels no change but documents that the agreement was meant to grow with the marriage.
• Bearing the costs. Who pays the notary and the legal advice belongs in the deed. Where the economically stronger side also covers the other’s advice, that is a strong argument against the later charge that independent advice was missing.

What does not belong in a prenuptial agreement

Three points keep appearing in drafts and have no effect there.

Custody and contact cannot be fixed bindingly for the event of a future separation. A family court decides both by the standard of the child’s welfare, and that standard follows the situation at the time of the decision.

Child maintenance belongs to the child, and nobody can waive it for the future § 1614 Abs. 1 BGB. An indemnity between the parents remains possible but binds nobody externally.

Inheritance arrangements belong in a separate instrument. A waiver of inheritance or of the compulsory portion is a contract of its own and equally subject to notarization §§ 2346, 2348 BGB. Both can be notarized at one appointment, which is sensible; in substance they remain two matters that need reviewing separately.

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. Selection is where the work sits, and selection decides later whether the agreement survives content review.

From advising the self-employed comes an observation no template carries. Many shareholders’ agreements oblige partners to tie their spouse in under property law and require evidence of it. Whoever fails to produce it risks sanctions up to the compulsory redemption of their shareholding. Draft a prenuptial agreement without the shareholders’ agreement next to it and you may be drafting past your own stake.

Before drafting we therefore need four things:

• a list of assets on both sides,
• the shareholders’ agreement where there are holdings,
• the current pension statement for both sides,
• a short description of how the marriage is meant to look economically.

From that follows the selection of building blocks and with it the transaction value the notary fee hangs on.

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.