Divorce — key topics
Marital Agreement and Divorce Settlement
A marital agreement lets you shape the consequences of a possible separation in advance – rather than leaving them to the statutory default. This is especially valuable where assets, a business or a cross-border element are involved. A good agreement is not a sign of mistrust but creates clarity and removes a great deal of conflict potential.
The Essentials at a Glance
- A marital agreement can regulate the property regime, maintenance, pension equalisation and – internationally – the choice of law.
- Especially useful with a business, assets, binational and second marriages.
- It must be notarised.
- One-sided, unfair agreements can be invalid.
- Child support cannot be contracted away to the child's detriment.
- Much can also be settled at separation in a divorce settlement agreement.
What Can a Marital Agreement Regulate?
Above all the property regime (for example a modified community of gains or separation of property), maintenance (within limits), pension equalisation and – particularly important for international marriages – the choice of law, that is which law applies if it comes to it. This can, for instance, keep a business out of the equalisation of gains so that a separation does not endanger the company, or set a particular maintenance arrangement for the case of childcare. The agreement thus creates planning security for both sides.
When Does It Make Sense?
Often for business owners and the self-employed, with substantial assets, in binational marriages and in second marriages with children from earlier relationships. It is also worthwhile where there are large income differences or where one partner brings assets into the marriage. Concluded early, the agreement creates clarity and prevents later conflict – but it is still possible, and often sensible, during the marriage, for example when a business is founded or an inheritance is expected.
Neue Farben
A balanced agreement does not lock anyone in – it gives both sides a fair, clear arrangement that holds.
Limits: the Agreement Must Be Fair
A marital agreement is not unlimited. If it burdens one spouse one-sidedly and unreasonably, it can be wholly or partly invalid – the courts examine this through a review of content and exercise, particularly strictly for the core area (such as care maintenance and pension equalisation). Certain points – above all child support – cannot be contracted away to the child's detriment. A well-drafted, balanced agreement withstands this review; a one-sidedly "watertight" one often does not. That is exactly what we focus on in drafting.
Form and Procedure
A marital agreement requires notarisation to be valid. As a rule we first discuss your goals and draft a balanced arrangement; the notarisation follows. Both sides should have enough time to review the draft – an agreement "pushed through" under time pressure is more vulnerable to later invalidity.
Divorce Settlement Agreement
Even at separation, much can be settled amicably – in a divorce settlement agreement. In it you can bindingly settle maintenance, assets, the property, household contents and other points. This often makes the process faster, cheaper and calmer and keeps the dispute out of court – an important contribution to a discreet, predictable separation.
What to Watch For
A marital agreement is only as good as its balance. An agreement that one-sidedly disadvantages one side looks "watertight" at first glance but often does not withstand judicial review – and is then worthless at the decisive moment. So make sure both sides can review the draft calmly and take advice; an agreement signed under time pressure is especially vulnerable. Regulate only what is permissible – child support, for instance, cannot be excluded to the child's detriment. And update the agreement after major life changes such as founding a business, an inheritance or the birth of children.
Frequently Asked Questions
Does a marital agreement have to be notarised?
Yes, it requires notarisation to be valid.
Can I still conclude one during the marriage?
Yes. A marital agreement is possible before and during the marriage – often sensible on founding a business or an expected inheritance.
Can it be challenged?
It can be wholly or partly invalid if it unfairly disadvantages one partner. A balanced drafting holds up.
What cannot be regulated?
For example child support to the child's detriment. Such points are outside freedom of contract.
Does a marital agreement protect my business?
Yes, it is one of the most effective tools – for example through a modified community of gains.
What does it cost?
The notary's fees depend on the value; legal drafting comes on top. We give you an estimate in advance.
What is the difference from a divorce settlement agreement?
The marital agreement regulates in advance; the settlement agreement is concluded in the course of the actual separation.
Is a marital agreement a sign of mistrust?
No. It creates clarity and removes much conflict potential – with a business or assets it is a sign of responsibility, not mistrust.
Do we each need our own lawyer?
For a balanced drafting and a valid notarisation, legal advice is strongly recommended, especially with substantial assets.
Can a foreign prenup be used in Germany?
Not automatically. Whether and how it takes effect depends on form, content and the applicable law – we review it in the individual case.
Should we update the agreement over time?
Yes. After major life changes – founding a business, an inheritance, the birth of children – it is worth reviewing and updating the agreement.
Your next step
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