Marriage Contracts in Germany

Protecting assets and avoiding disputes with prenuptial agreements

Marriage in Germany has numerous legal implications for couples. The consequences are even more serious in the event of a divorce. Since the results of divorce under German family law may unfair or inappropriate in many situations, couples should consider a marriage contract when getting married. This applies, in particular, to entrepreneurs and wealthy individuals, who can protect business property, real estate and other assets by means of a German marriage contract.

Dr Marko Oldenburger - Your English-speaking lawyer for German marriage contracts

At ROSE & PARTNER, your contact person for marriage contracts with a foreign connection is Dr Marko Oldenburger. He is an experienced certified specialist for family law and is deeply familiar with German and international divorce law. Dr Oldenburger is based in our main office in Hamburg, but also assists clients in our other offices in Berlin, Frankfurt, and Munich, as well as nationally and internationally.

Dr Oldenburger is fluent in English and has received several awards from international juries as Lawyer of the Year for Family Law in Germany (including from the Lawyer Monthly Legal Awards and ACQ5 Global Awards).

Marriages in Germany under German law

In Germany, a marriage must be contracted before a registrar. An additional religious ceremony is possible, but not required. Couples wishing to marry must register with the registry office. That office must have jurisdiction over the place in Germany where at least one of the two future spouses resides. If neither resides in Germany, the registry office of the location where the marriage will take place can be contacted.

The registry office will provide information about the documents required for marriage (for example, identity cards, birth certificates, or divorce decrees) and about the form in which the documents must be presented (for example, as a certified true copy, or a translation by a certified translator). The office will carefully check whether the requirements for marriage have been met, and whether there are any obstacles to marriage. An important condition is that both spouses are unmarried (bigamy) or legally divorced. In this context, it may become necessary to have a foreign divorce recognised in Germany.

If the marriage is to take place abroad, the requirements under the respective national law and those under the law of the Federal Republic of Germany must both be observed. After the wedding, the marriage should be registered and recognised in Germany. This is also done at the registry office, which keep marriage registers.

When does a German marriage contract make sense?

Like the consequences of marriage, the consequences of divorce are regulated by German law. Divorce law in Germany is characterised by the principle of solidarity. This benefits the partner who is financially weaker during the duration of the marriage, for example, because he or she is unable to pursue a gainful employment or can only pursue it to a limited extent due to childcare and household tasks.

If the marriage ends in divorce, the spouse who gained more assets during the marriage must provide the other spouse half of the difference as so-called "equalisation of surplus". In addition, pension rights acquired during the marriage will be distributed equally between both spouses. Finally, even after the divorce, there may be a maintenance obligation for the other person if he or she is needy or if so-called “marital disadvantages” have arisen.

In many situations, however, these default legal provisions can lead to undesirable or unjust results, for instance the splitting-up of companies or significant private assets. Moreover, issues of asset valuation for the purpose of equalisation of surplus can be as contentious as calculating income for purposes of maintenance. Competing interests will often fuel protracted and costly legal disputes. Expert opinions are commissioned, contrary opinions submitted, and disputes can drag on through several levels of the court system.

Therefore, couples can and should specify in advance in a marriage contract how they wish to conduct their marriage, which consequences a potential divorce will have. The result must be fair and balanced. The contract may not disproportionately disadvantaged either spouse, and both must sign the contract voluntarily. Only then can disputes be avoided, and companies or real estate protected from liquidation.

What can be regulated in a marriage contract under German law?

A German marriage contract can contain provisions governing the marriage as well as separation and divorce. Separation and divorce consequences are usually the focus of marriage contracts:

1. Equalisation of surplus: A marriage contract allows you to modify or eliminate the matrimonial property regime, for example by excluding certain assets from the settlement in the event of divorce, capping the amount of surplus, linking them to the marriage period, or excluding them from consideration altogether.
2. Pension rights adjustment: You can also exclude or modify the adjustment of pension entitlements.
3. Maintenance after marriage Maintenance claims for the ex-partner after the divorce can – depending on the specific situation – be eliminated or altered by a marriage contract or a separation and divorce agreement.

If the marriage contract is subject to German law, it is important that its provisions, in their entirety, are not unreasonably disadvantageous to either of the spouses, considering their specific life situation. A finding of unreasonable disadvantage can void the contract. In doubtful cases, this issue will be decided by a court. The court’s assessment will depend on the circumstances at the time the contract is concluded, the subsequent course of the marriage, and the circumstances at the time of separation or divorce. You can rely on the experience of our lawyers to find and enforce the best possible solution for you, so that you will be prepared for any later judicial scrutiny of the contract.

Under German law, most marriage contract provisions require notarisation by a notary public. We will hire a notary for you and prepare the notarisation of the contract.

German or foreign law - the choice of law in the marriage contract

In the case of marriages with an international connection, the fundamental question arises as to which national law governs the effects of marriage, separation, and divorce. In addition to international jurisdiction, which is regulated by the Brussels IIa Regulation, various European law standards come into play: The EU Matrimonial Property regulation, the EU Marriage Regulation, the Hague Protocol on Maintenance, the EU Maintenance Regulation, etc. The decisive factor is first and foremost the common habitual residence, but the nationality of the spouses can also be considered. Depending on circumstances, the law of the country with which the marriage was most closely connected may also be applicable.

A marriage contract gives spouses the possibility to choose the law applicable to their marriage and matrimonial property regime. Available choices should be carefully considered, and the consequences of the alternative legal systems must be compared and analysed. The determination which country’s law applies to a marriage is called the “choice of law” question. Thus, as an alternative to the default matrimonial, maintenance and property regime, spouses may choose the law of the country in which they live, the law of the country of which one is a citizen, the law of the country in which only one of them has his or her habitual residence or, specifically in the case of real estate, the law of the country in which the property is situated.

But care must be taken: If the spouses' place of residence changes during the marriage, it may happen that, despite a valid earlier choice of German law, different national law will apply in the event of separation and divorce. This is because not all countries may respect a choice to have German apply, but will rather apply their own family law. In the case of planned relocations, the possibility of a change in the applicable law should therefore be immediately addressed. Remember to check your marriage contract and have it amended if you move to another country or live there for a long period.

Our specialists in family law will advise you on your choice of law, so that you can decide on the best option.