Marriage is a bit like the history of a colonial country: it gets conquered, and then it forever faces a struggle for independence. — M. Almazan
As our regular readers and clients well know, one of the core practice areas of our law firm is family law. One of the family-law topics that residents and citizens of Germany find most pressing — and one they raise with their lawyers ever more often — is whether it is worth entering into a marital agreement (German: Ehevertrag). Spouses are, in particular, interested in what it means for their financial and personal security, and in how it works in practice. The question is often just as important for people entering Germany as a fiancé(e) from another country — especially from states that do not yet have an established tradition, or much practical experience, in using legal instruments that govern the rights, duties, and responsibilities spouses owe one another. Educated, forward-thinking people have long since come to see a marital agreement not as a sign of total distrust rooted in the fear of being cheated by one's partner, but rather as a sensible precaution against possible disagreements over the financial side of married life — a pre-agreed, rational division of roles for regulating the relationship both during the marriage and if it ends. A marital agreement not only makes it possible to achieve a relatively high degree of balance between the parties' property interests during the marriage, but also to plan for an acceptable division of property should the marriage end. Such an agreement is also seen as a reasonable way to protect both parties against the economic risks that arise when a marriage ends, or on old age or the death of one spouse. German law allows spouses or engaged couples to combine a marital agreement with an inheritance contract in a single document, again requiring both parties to appear before a notary together. Spouses may, in particular, agree in the marital agreement to a "continued community of property" regime, under which, after one spouse's death, the community-of-property arrangement continues between the surviving spouse and the couple's joint descendants. Notably, under German law such an agreement may also include testamentary provisions naming heirs, bequests and conditions (including earmarking property for a specific purpose), pension arrangements funded through a business forming part of the joint property, and other important matters of inheritance law.
As a general rule, if no marital agreement has been signed, Germany applies a statutory property regime under which premarital assets are kept separate while assets acquired during the marriage are treated as jointly owned. At divorce, jointly acquired property is subject to an equalization of accrued gains: the spouse who has built up the larger share of capital must pay the other spouse half the difference. The main purpose of a marital agreement is for the partners to jointly and voluntarily regulate their property relations — that is, to opt out of the statutory scheme and decide for themselves what counts as joint and what counts as separate property.
Under German law, a marital agreement is a contract between people about to marry, or between spouses, that sets out their property rights and obligations during the marriage and/or in the event it ends. It is important to bear in mind that such a contract can only regulate matters falling within civil law — the parties may agree on and formally record only their relations concerning property, that is, the applicable property regime, and may also exclude the equalization of pension entitlements. A marital agreement may be signed either before the marriage is registered or at any time during the marriage. One signed before registration takes effect on the date of registration. It must be signed with both spouses present before a notary, using a standard form. Notably, German law also allows the agreement to be signed by proxy through voluntary representation. Where the marriage is a mixed one and one spouse does not have full command of the language, an interpreter must be present in addition to the notary (Notar). Where a party to the agreement is a minor, German law, like most legal systems, requires the consent of their legal representatives.
Spouses typically use a marital agreement to settle a number of key aspects of their property relationship: defining and regulating a joint or separate ownership regime for marital property (e.g., giving one spouse the right to manage property, changing the share ratio for dividing joint property after divorce, defining what property falls outside the joint estate before or after marriage, agreeing on the valuation of particular assets); it is also advisable to regulate how debts are handled — the agreement can provide that each spouse remains individually liable for debts incurred both before and during the marriage; regulating pension and retirement entitlements earned during the marriage, and modifying the statutory division of such rights and privileges, as well as the conditions and timing of their allocation; the obligation to pay maintenance to a former spouse after divorce, and any exclusion or modification of the statutory obligations, including when and how such obligations take effect (e.g., on the birth of children, or after a certain period) and in what form they are to be fulfilled; questions relating to the residence and support of the couple's minor children — a particularly important point in international marriages; and, where the spouses hold different nationalities, which country's law will govern their relationship. For ease of interpretation and enforcement, anyone permanently resident in Germany is generally advised to specify German law as the governing law.
Despite the apparent freedom to independently set the terms of a marital agreement in Germany, there are certain limits. The core principle underlying marital agreements in Germany is protecting the equal partnership of husband and wife within marriage. Germany's Federal Constitutional Court has held that a marital agreement represents a kind of compromise that the state must respect — but it cannot be based on one party's dominance allowing them to effectively dictate its terms unilaterally. Terms such as a complete waiver of the equalization of accrued gains, or a waiver of maintenance for a spouse or child in genuine need, therefore conflict with the essence of the equal life partnership that marriage is recognized as under the public policy shared across EU countries. Spouses may, for example, limit or exclude the obligation to support the other spouse during the year of separation before divorce, or after divorce — but a spouse who waives such a right must receive commensurate compensation. A voluntary waiver of maintenance for a minor child under a marital agreement, however, is never permitted in Germany. A marital agreement may be signed at any time during the marriage, and may likewise be amended or terminated by the spouses at any time — any such amendment or termination must be notarized, effectively amounting to a "renewed conclusion" of the marital agreement. In granting spouses the right to regulate their property relations through a marital agreement, the German Civil Code (Bürgerliches Gesetzbuch, BGB) specifically includes the right to revoke or amend the property regime after the marriage has already begun.
In today's world, the marital agreement is an effective, time-tested instrument for regulating spouses' property relations. It is therefore widely used both in Germany and elsewhere in the EU, since it allows the parties' individual needs to be captured and secured, achieves a mutual balance of interests, and helps prevent adverse consequences from property disputes when a marriage ends or at inheritance. Our firm's experienced family-law lawyers will advise you on the legal questions arising from your marital relationship, help you draft and finalize a marital agreement, and provide legal representation in any disputes over its enforcement.
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