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Prenuptial agreement
When is a prenuptial agreement invalid?
“Does the agreement we signed back then still hold?” No other question about prenuptial agreements comes up more often in a first meeting. German courts neither wave such agreements through nor strike them down on request. Between those two misconceptions sits a two-stage review whose outcome can be predicted fairly well.
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 agreementWhen does a prenuptial agreement fall in court?
A prenuptial agreement becomes invalid when two things coincide. Objectively it has to place a one-sided burden on one spouse, and subjectively that spouse has to have been in an inferior bargaining position when signing. Where one of the two is missing, the agreement stands, however unevenly it distributes.
Review happens on two levels. Validity review looks at the day of notarization § 138 Abs. 1 BGB, exercise review at the day one spouse relies on the agreement § 242 BGB. Each level leads to a different legal consequence, and that difference decides what survives of an agreement under attack.
Which consequence of divorce is protected how strongly
Germany’s Federal Court of Justice ranks the consequences of divorce by their closeness to the core area of divorce law BGH, judgment of 11 February 2004, XII ZR 265/02. Closer to that core means tighter limits on freedom of contract. From the inside out:
- Betreuungsunterhalt (childcare maintenance) sits closest to the core. It serves the care of the shared child, and a waiver survives review only in exceptional cases.
- Maintenance for old age and illness follows immediately. Both insure against risks nobody can steer.
- (pension rights adjustment) ranks alongside those two, because in substance it is anticipated old-age maintenance.
- Maintenance for unemployment, top-up maintenance and training maintenance sit considerably further out and can be arranged far more freely.
- (equalization of accrued gains) sits furthest out. It is the most open to free agreement, which makes it the most rewarding field for advance planning.
That ranking explains a finding which regularly surprises clients. An agreement excluding the equalization of accrued gains in full holds up more often than one that trims childcare maintenance by a small amount.
Validity review under § 138 Abs. 1 BGB
Stage one asks whether the agreement already carried such a one-sided distribution of burdens on the day of notarization that the legal order has to withhold recognition. Its yardstick is an overall assessment of income, assets, the planned shape of the marriage and the effects on shared children.
Where that line runs was sharpened in 2025 BGH, decision of 28 May 2025, XII ZB 395/24. In 2010 a business economist who was running a limited company herself agreed on separation of property with a shareholder in several family businesses. Their deed excluded the equalization of accrued gains and added a mutual waiver of inheritance and compulsory-portion rights. After their third child was born she gave up her professional work. On separation she considered the agreement contrary to public policy.
The senate disagreed. An uneven distribution of wealth and a traditional division of roles do not by themselves make a prenuptial agreement contrary to public policy. Aggravating circumstances outside the deed are needed, meaning the exploitation of a predicament, social or economic dependency, or intellectual inferiority. Where those are absent, the agreement stands.
Two details of that case tend to drop out of short summaries, and for drafting they matter more than the headline. This wife had her own legal advice at the notary appointment and was economically independent. And the agreement by no means left her empty-handed on maintenance. From a marriage lasting four years it promised her 5,000 euros a month, index-linked. On top came childcare maintenance without any obligation to work until the youngest child turned seven.
Where validity review does bite, the affected clause is void from the outset. Statutory law steps into its place, meaning the full statutory default the agreement was meant to avoid.
Exercise review under § 242 BGB
Stage two starts later and asks whether circumstances have shifted so far since notarization that relying on the agreement today would offend good faith. Its measure is what both spouses jointly planned at the time.
A textbook case is the marriage that ran differently from the plan. Two working professionals agree on a mutual waiver of maintenance because both earn well and neither depends on the other. Then a child arrives, one of them gives up work, and the planned dual-income marriage turns into a single-income one. Now the waiver hits someone it was never meant to hit under the joint plan.
Consequences here are milder. Rather than discarding the agreement as a whole, the court adjusts the legal consequence to what would be appropriate without the shift.
Which circumstances count as inferiority
Inferiority means a situation that can be named, and dissatisfaction with the outcome in hindsight is not one. Germany’s Federal Constitutional Court set the starting point BVerfG, judgment of 6 February 2001, 1 BvR 12/92. Where a prenuptial agreement reflects the one-sided dominance of one party instead of a negotiation between equals, the courts have to correct it through the general clauses of civil law.
As the standard case of such a situation the court names the unmarried pregnant woman facing the choice between caring for the expected child alone and marrying its father. A man’s willingness to marry is not on its own sufficient consideration for giving up everything she would be entitled to on divorce.
From our practice, four constellations recur:
- A draft arrives days before the wedding, with the invitations long since sent.
- One spouse barely speaks the language of the deed and has received no written translation.
- One spouse’s residence permit depends on the marriage continuing.
- Only one side had legal advice, and the draft came from that very lawyer.
Clients often add that the notary advised both of them, so everything must be in order. A notary explains the content of the deed and its legal implications. Whether that content is favorable for you is something he may not assess on one side, because he owes both parties the same duty. Precisely that partisan advice is what goes missing.
What happens when a single clause falls
Once a clause drops out, the rest of the agreement is up for debate. Where a term offends public policy, the whole transaction is void in case of doubt § 139 BGB. Anything else applies only where it can be established that the spouses would have wanted the remaining part without the void one.
Almost every notarial prenuptial agreement therefore contains a severability clause ordering exactly that. It helps, yet decides nothing on its own. Where the one-sidedness arises from the interplay of several waivers, what remains rarely survives the overall assessment.
Under exercise review the agreement stays in place. A court replaces only the one legal consequence a spouse invokes in bad faith and leaves everything else untouched.
What makes a prenuptial agreement robust
Robustness comes above all from how an agreement came about, less from its wording. Four points carry the most weight:
- Several weeks between the first draft and the notary appointment. Ahead of a wedding the whole process belongs months before the date.
- Separate legal advice for both sides, documented.
- Visible consideration for the side that gives ground, such as a settlement sum, a property, or a graduated maintenance arrangement.
- A recital recording the purpose of the agreement and the economic position of both sides at signing. Years later it is the best evidence of what was actually discussed.
Because exercise review responds to later shifts, a second look pays off after every major turning point, so after the birth of a child, a business succession, or a move abroad. How an existing agreement can be adjusted is covered in Changing or cancelling a prenuptial agreement.
How much room the individual levers leave is set out in Excluding the equalization of accrued gains and in Settling post-marital maintenance in a prenuptial agreement. Our page on the prenuptial agreement describes the framework as a whole.
Whether your existing agreement survives review can only be judged from the deed and from the circumstances in which it came about. Bring both, including an agreement concluded abroad. In a confidential first meeting we tell you which clauses carry and which we consider open to attack. 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.