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A guide for expats · Frankfurt am Main

Prenuptial agreements in Germany, and what they really do

A German marriage contract (Ehevertrag) is not the private document you may know from home, and it does not simply mean “what’s mine stays mine.” It must be notarised, it works within limits, and a court can still review it. Here is what it can achieve — and whether the prenup you already signed counts here.

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Four things expats get wrong first

It must be notarised

A marriage contract is only valid if a German notary certifies it with both spouses present — a lawyer-drafted private document is not enough (§ 1410 BGB).

You already have a regime

Without a contract you are in the community of accrued gains (Zugewinngemeinschaft) — not joint property. Each keeps their own; only the gain is shared.

A court can still review it

German judges do not rubber-stamp prenups. A one-sided contract can be void or adjusted at divorce (Inhaltskontrolle) — signing is not the end of the question.

A foreign prenup travels badly

A prenup signed abroad may be recognised, yet tested against German form and limits — and may not achieve here what you intended.

You already have a marriage contract — the one the law wrote for you

The most common misconception among couples who married abroad is that Germany has “community property,” so that on divorce everything is halved. It does not. Unless you agree otherwise, marriage places you in the community of accrued gains (Zugewinngemeinschaft): during the marriage each spouse keeps their own assets and their own debts, and there is no shared pot.

Only when the marriage ends is the gain equalised. Each spouse’s assets at the end are compared with what they owned at the start; whoever gained more pays half the difference to the other — as money, not as a transfer of the assets themselves. A marriage contract does not create this regime; it changes it. Knowing your default is the starting point for deciding whether you need to move away from it at all.

A German prenup only counts if a notary certifies it

In many common-law countries a prenuptial agreement is a private contract: two lawyers draft it, the couple signs, done. Germany is stricter. A marriage contract must be recorded by a notary (Notar) with both spouses present at the same time (§ 1410 BGB). A privately signed document — however carefully drafted — has no effect as a marriage contract.

That is not bureaucracy for its own sake. The notary’s job is to read the agreement aloud, explain its consequences to both sides, and make sure neither is signing something they do not understand. A lawyer prepares and negotiates the substance in your interest; the notary then gives it legal force. The two roles are separate, and you want both.

Three levers — and one thing you can never touch

A marriage contract works on three areas of divorce law. You can adjust any of them together or separately — the art is in doing only as much as your situation needs.

  1. Property regime

    Switch to separation of property (Gütertrennung, § 1414 BGB), or — usually the smarter choice — keep the community of gains but modify it: carve a company, a practice or an inheritance out of the gain, or cap the equalisation claim.

  2. Pension rights adjustment

    The Versorgungsausgleich (splitting of pension entitlements built up during the marriage) can be modified or excluded, but only within limits — a court reviews the clause, and can set it aside where it leaves one spouse unprotected (§ 8 VersAusglG).

  3. Maintenance after divorce

    Post-marital maintenance (nachehelicher Unterhalt) can be limited or waived. But there are floors: maintenance for the care of a young child cannot be signed away, and child support belongs to the child — it is never waivable.

The hard floor: child support belongs to the child and can never be waived by the parents. Nor can you contract away the maintenance owed to a parent caring for a young child. A contract that tries to is, on that point, simply void.

Why signing is not the end of the question

The biggest surprise for couples from common-law systems is that a German court does not treat a signed prenup as the last word. It can review the contract — this is the content control (Inhaltskontrolle) developed by the Federal Court of Justice (Bundesgerichtshof).

The review runs in two stages. First, a validity check: is the whole contract contrary to public policy because it one-sidedly burdens one spouse from the outset (§ 138 BGB)? If so, it is void. Second, an exercise check at the time of divorce: even a valid contract may not be relied on if, given how life actually turned out, insisting on a clause would be grossly unfair (§ 242 BGB).

Courts weigh the areas by how much protection each normally deserves — the care of children first, then pension sharing, then maintenance, with the property regime the easiest to reshape. The practical lesson is reassuring: a balanced contract, fairly negotiated with advice on both sides, holds up. It is the lop-sided one, signed under pressure, that fails when it matters most.

The prenup you already signed abroad

If you signed a prenup in another country, do not assume it does nothing here — and do not assume it does exactly what you intended. Two separate questions decide the outcome, and they are governed by different rules.

First, which law governs your matrimonial property? For couples marrying from 29 January 2019, an EU regulation on matrimonial property regimes lets spouses choose the applicable law; without a choice, it is usually the law of your first shared country of residence after the wedding. A couple who married in one country, then built their life in Germany, may find German property law applies to them regardless of where the document was drawn up.

Second, the divorce itself follows its own rule (Rome III), which is again about where you live, not which passport you hold. A foreign prenup can be recognised, but it will still be measured against German form and the same content limits as a German one — so a clause that validly waived pension sharing or maintenance at home may not hold here. For international couples the safe step is to have the existing document reviewed under German law, and, where the stakes justify it, mirrored in a German marriage contract. This is the heart of our international family law work.

When a marriage contract earns its keep

Not every couple needs one, and a bad contract is worse than none. But there are situations where the statutory default fits poorly, and a tailored agreement protects both sides:

  • A business or a professional practice — to keep the equalisation of gains from turning the company’s growth into a payout that threatens its liquidity. We go into this on our high-asset divorce page.
  • A large disparity in assets or income, or family wealth and inheritances one spouse wants to keep separate.
  • A second marriage, especially with children from a first, where existing provision needs protecting.
  • An international couple — different nationalities, assets in more than one country, or a real chance of a future move abroad.

Common questions

We signed a prenuptial agreement abroad — is it valid in Germany?
Often it is recognised in principle, but that is not the same as it working the way you expected. A German court will test its form and, above all, its content against German limits (Inhaltskontrolle). A US or UK prenup that validly waives maintenance or pension sharing at home may not fully achieve that here — and the law governing your matrimonial property may not be the one you assumed. For international couples the safe route is to have the foreign document reviewed, and if needed mirrored, under German law.
Do we really need a notary, or can our lawyer draft it?
A marriage contract must be recorded by a German notary (Notar) with both spouses present — this is a strict form requirement under § 1410 BGB, not a formality you can skip. A privately drafted and signed document, however carefully worded, is void as a marriage contract. A lawyer prepares and negotiates the substance; the notary gives it legal force.
Can we make a contract after we are already married?
Yes. A marriage contract can be concluded before the wedding or at any time during the marriage — the term "prenuptial" is a convenience, not a deadline. Couples often put one in place after a business is founded, an inheritance arrives, or circumstances change. The same notarial form and the same content limits apply.
Does a prenup mean separation of property?
Not necessarily — and full separation of property (Gütertrennung) is frequently the wrong tool, because it can create tax disadvantages and leave a caregiving spouse unprotected. In many cases a modified community of gains is better: you stay in the statutory regime but ring-fence specific assets, such as a company or inherited property, from the equalisation of gains. What fits depends on your assets and your goals.
I own a company — can a marriage contract protect it?
Yes, and this is one of the strongest reasons to have one. Without a contract, the increase in your company’s value during the marriage flows into the equalisation of gains and can turn into a large payout — even though your spouse never receives shares or control. A contract can exclude the business from the gain or cap the claim, protecting both ownership and the liquidity the company needs to keep running.
Can a German court simply throw our contract out?
It can, where the contract one-sidedly burdens one spouse. German case law works in two stages: a validity check (§ 138 BGB — is the whole contract contrary to public policy?) and an exercise check at divorce (§ 242 BGB — is it fair to rely on this clause now?). The greater the protection an area normally enjoys — care of children, then pensions, then maintenance — the harder it is to waive it. A balanced contract, fairly negotiated, holds up; a lop-sided one may not.

This page explains the law; drafting one that holds up needs someone to run it with you. If you are looking for an English-speaking divorce lawyer in Frankfurt, that is what this office does — for expats, binational couples and cross-border cases. You may also want our guide to divorce in Germany: cost and process.

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Talk it through, in English, before you sign anything

A confidential initial consultation — what the default regime means for you, whether a contract is worth it, and what it should say. We reply personally, usually within one business day.

Sources

  1. Governing statutes (Bürgerliches Gesetzbuch, BGB): § 1408 (marriage contracts), § 1410 (notarial form), § 1363 (community of accrued gains), § 1414 (separation of property), § 138 and § 242 (validity and good faith) — gesetze-im-internet.de.
  2. Pension rights adjustment: Versorgungsausgleichsgesetz (VersAusglG), § 8 (agreements between spouses) — gesetze-im-internet.de.
  3. Council Regulation (EU) 2016/1103, on the property regimes of international couples (applicable to marriages from 29 January 2019) — eur-lex.europa.eu.
  4. Council Regulation (EU) No 1259/2010 (Rome III), on the law applicable to divorce — eur-lex.europa.eu.