Prenuptial Agreement

The prenuptial agreement is a contract concluded between spouses before or during marriage to regulate legal consequences in the context of marriage. The prenuptial agreement can contractually establish statutory regulations of matrimonial property law and divorce consequences, as well as other areas such as inheritance issues.

Dr Mariella Stubhann MPM MBA
Finanz & Recht „Auch heute ist der Ehevertrag noch ein Nischenthema. Viele Ehepaare haben sich vor der Eheschließung Gedanken gemacht – nur wenige haben tatsächlich einen Ehevertrag erstellt.

Zu Unrecht, wie ich meine.“

Even if it may seem inappropriate to talk about the consequences of separation during a phase of highest infatuation, it is not. On the contrary, a prenuptial agreement represents a sensible means of joint life planning that provides security for both parties.

Especially when divorce turns into years of bitter conflict, many couples regret in retrospect not having created a prenuptial agreement – at a time when they could still talk about everything. A prenuptial agreement would have brought clear conditions and future security for both sides.

Future Security

Especially after years of marriage, it is often no longer provable in case of divorce which marital assets and savings were acquired during the marriage and which were already present before. Therefore, concluding a prenuptial agreement can be expedient to avoid disputes over the division of marital property.

The conclusion of a prenuptial agreement is possible both before and after the marriage. Although after the marriage, there are no “obligations” for the respective other partner to conclude an agreement.

Common Topics in a Prenuptial Agreement

Spouses are very free in designing the prenuptial agreement. Typical prenuptial agreements include the following topics:

Data of the spouses
List of any other contracts between the spouses
List of existing assets or debts of the spouses
Allocation of future assets created during the ongoing marriage
Regulations of one spouse’s participation in the other spouse’s earnings
Regulations for the case of divorce
Regulations for the case of death
Choice of law clause
Legal advice

List of any other contracts between the spouses

Often, other contracts between the spouses are concluded in addition to the prenuptial agreement. These are then listed in the prenuptial agreement:

Employment contracts, e.g., when one spouse works in the other spouse’s business
Partnership agreements
Inheritance contracts
Wills
Settlements

List of existing assets or debts

Especially listing the existing assets or debts as well as their origin and valuation in the form of a prenuptial agreement brings great advantages in case of a later divorce, as many pieces of evidence disappear over time.

For example, after years of marriage, old bank statements or balance sheets may simply no longer be available due to routine disposal after the end of statutory retention obligations.

Regulations for the case of divorce

Regulations for the case of divorce are the main motivation and thus the core topic of most prenuptial agreements. The following topics are in focus:

Regulations regarding the marital home
Division of marital property
Division of assets or debts
Alimony

Inadmissible regulations in a prenuptial agreement

Attention: Not everything can be regulated in a prenuptial agreement. The following regulations, for example, are inadmissible:

Complete waiver of maintenance during marriage
Agreements on custody and maintenance of joint children

Complete waiver of maintenance during marriage

For an ongoing marriage, a complete waiver of maintenance cannot be agreed upon in a prenuptial agreement.

On the one hand, mutual care is a fundamental principle of marriage. Those who are not willing to do so should not marry.

On the other hand, this would outsource a significant part of the economic risk of the married couple to the state. This is also not sensible, as the state already promotes marriage and cohabitation of people.

Agreements on custody and maintenance of joint children

Agreements on custody and maintenance of joint children can be included in the prenuptial agreement. However, case law considers these regulations as non-binding. They are therefore merely declarations of intent.

This serves to protect the children and the parents. Regarding regulations concerning custody and maintenance of children, the child’s well-being always takes precedence. In addition, no parent should be susceptible to blackmail for monetary considerations to give up rights to the children in case of divorce.

Formal requirements for prenuptial agreements

The marriage contract itself is not bound to a specific form. However, depending on the content of the marriage contract, statutory formal requirements may come into effect. For example, agreements on the division of marital savings or the marital home require a notarial deed, while written form is sufficient for agreements on the division of other marital property.

Updating prenuptial agreements

Marriage contracts should be adapted to current life circumstances (changes in employment, income, marital status, etc.) from time to time. It is also recommended to include a provision for this in the marriage contract itself.

Creating prenuptial agreements

Creating a marriage contract on your own or based on instructions from the internet or with the help of artificial intelligence is not a good idea.

Ultimately, a marriage contract is only useful if it is legally valid and can thus avoid later disputes.

Therefore, the marriage contract is usually drafted with the help of a specialized lawyer who has an overview of the complex regulations of marriage law, divorce law, inheritance law, and tax law. If necessary, they will also organize the appointment for signing at the notary’s office.

Costs of a prenuptial agreement

The costs of creating a marriage contract depend heavily on the scope and content of the contract.

The fee is usually calculated based on an hourly rate. For specialized lawyers, this is typically around € 350.00 (including VAT) per hour.

For a simple marriage contract, the following costs are approximately incurred:

Initial consultation to identify the topics to be regulated in the marriage contract and subsequent legal advice (approx. 1 hour)
Review of the information provided by the spouses and possible follow-up questions (approx. 1 hour)
Drafting of the marriage contract (approx. 2 hours)
Discussion of the completed marriage contract (approx. 1 hour)

For the creation of a simple marriage contract by a lawyer, approximately five hours of work are required, resulting in total costs of about € 1,750.00 (including VAT).

Prenuptial Agreement