From our "Ask a Lawyer" column: "QUESTION: I've chosen my life partner — is it worth signing a marital agreement (German: Ehevertrag)? What does it cover, and what clauses absolutely must be in it? The lawyer's ANSWER: Honestly, when the law first allowed marital agreements, I regarded them with suspicion, mindful of the moral side of the matter. Over time, having helped clients draft and sign such agreements, I came to see this "Western device" as a genuine benefit — because it lets spouses settle their property rights and obligations during the marriage, and above all in the event it ends, without disputes or bitterness…"
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. A marital agreement may be concluded either before the marriage is registered or at any time during the marriage. An agreement concluded before registration takes effect on the date of registration.
So, what do spouses need to know about entering into a marital agreement? First, it must be made in writing and notarized. Second, it may cover both existing and future marital property. Third, spouses may use it to modify the statutory community-of-property regime, establishing a regime of joint, partial, or separate ownership over all or part of their property. Fourth, spouses may set out their mutual maintenance rights and obligations, how each will participate in the other's income, how household expenses will be shared, what property each spouse will receive if the marriage ends, and any other provisions relating to their property relations. We will spare the reader every nuance of this genuinely useful legal instrument — suffice it to say that the rights and obligations it sets out may be limited to a set period or made conditional on certain events occurring or not occurring. A marital agreement may be amended or terminated at any time by mutual consent, in the same form as the original agreement. A unilateral withdrawal from a marital agreement, however, is not permitted — it may only be amended or terminated at one spouse's request through the courts.
That is precisely the subject of this article. A woman — let's call her Elena — came to our law firm for help, asking the lawyer to represent her in a civil court case. As the client explained, her husband had filed a lawsuit seeking to have their marital agreement reviewed and amended.
Elena, her husband, and their son had moved to Germany from Russia; all three hold dual citizenship, Russian and German. On arriving in Germany, Elena tried to integrate as quickly as possible — she completed an integration course and found work. At first it was low-paid, unskilled work, but she later took a job at a library, earning a modest but decent salary. Meanwhile, her husband focused on his career: he had worked as a doctor in Russia and, in Germany, worked through the recognition of his medical degree, improved his German, and pursued further qualifications. Eventually he, too, landed the job he had been waiting for — but not in Berlin, in another city. The family decided together to accept the offer and relocate. Elena had to give up her job. She could not find work in the new city and took care of the household instead. But, as often happens in families where only one spouse works, disagreements, arguments, and resentment set in. Things eventually got to the point where the couple separated. Their son, by then an adult, stayed with his father. The husband proposed a marital agreement, promising to consult a lawyer about it. A few days later he told Elena he had scheduled an appointment with a notary to sign it, and invited her to review its terms. Under the draft, the husband agreed to pay Elena a monthly maintenance of 1,000 euros during the separation period and after the divorce. In return, Elena would not claim any share of his pension entitlements or of the property acquired during the marriage. The agreement also specified that German law would govern all matters relating to their marriage. The notary warned them of the consequences of such an agreement. Both parties accepted the terms and signed the agreement in the notary's presence, who certified their signatures. From that point on, Elena and her husband had no further contact.
Several years passed, and Elena then learned that her husband had traveled to Russia and had their marriage dissolved there without her involvement or consent. He had now also filed a lawsuit in Germany seeking to amend the terms of the marital agreement... After reviewing the copy of the complaint the client brought in, the lawyer petitioned the court for access to the case file. Upon reviewing the documents, the lawyer discovered that the plaintiff — our client's ex-husband — had consulted a lawyer about divorce under German and Russian law ten months before the marital agreement was signed, and had instructed that lawyer to calculate the maintenance he would owe his wife. According to that lawyer's calculations, his wife was entitled to 1,122 euros a month out of his income of 3,142 euros. The calculation had fictitiously imputed to the wife the income she could have earned had she been working (based on an average for her profession). It had not taken into account any income she might later earn from renting out an apartment in Russia, or any Russian pension, since at the time she had neither an apartment nor a pension.
In 2005, our client's mother died in Russia, and she inherited an apartment, becoming its owner. In March 2013, she began receiving a Russian pension. The plaintiff currently works as a doctor with a net income of 4,257 euros and owns no real estate. In his lawsuit, he claimed that the marital agreement had been entered into because the defendant — his ex-wife — wanted to find work and housing, and that he had agreed to the terms described above on that basis. In 2012, however, he learned that she had inherited an apartment worth 60,000 euros, and he argued that the circumstances had since changed compared to when the agreement was signed, insisting that it be amended, that she disclose all her income, and that maintenance be recalculated.
The lawyer filed objections to the claim, pointing out that the agreement stated it was concluded for an indefinite period, regardless of any future changes in the defendant's income. As the agreement itself made clear, its actual purpose did not match the one the plaintiff described in his complaint — its true purpose had been to secure the defendant's waiver of any share of the plaintiff's pension entitlements and of the property acquired during the marriage. The defendant had fulfilled that condition. Our client had sacrificed her own job and career for her husband's, giving up her work and moving with him to another city — which is precisely why she had become a homemaker. The agreement specified that German law governed their marital relations; the plaintiff's dissolution of the marriage in Russia under Russian law therefore contravened the marital agreement and was unlawful. Finally, under German law, amending a marital agreement through the courts requires events that the parties could not have foreseen when the agreement was signed — such that, had they foreseen them, they would never have entered into the agreement at all. Here, the parties had known and expected that the defendant would eventually inherit, reach retirement age, and begin drawing a pension. Those circumstances therefore could not change the substance of the agreement. The lawyer asked the court to dismiss the plaintiff's claims in full.
The court accepted Elena's lawyer's arguments and dismissed her ex-husband's claim to amend the terms of the marital agreement.
As you can see, dear reader, even a marital agreement that appears to cover everything can still become the subject of a dispute. That is why, when entering into one, we recommend consulting a lawyer who specializes in family law — someone who can help you draft it properly and avoid needless trouble down the road.
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