They can make the following arrangements by mutual agreement in the following areas:

• Matrimonial property law (agreement on community of property or separation of property instead of the otherwise automatically existing community of accrued gains upon marriage)
• Community of accrued gains(various modifications possible)
• Cancellation of the restrictions on disposal pursuant to Sections 1365, 1369 BGB
• Maintenance law(modifications to post-marital maintenance)
• Marital home or divorce property
• Custody and access rights
• Agreements on divorce (e.g. continuation of the married name, division of household effects)
• for marriages with a foreign element, choice of law, i.e. determination of the law applicable in the event of divorce

A lawyer familiar with the drafting of prenuptial agreements will advise you comprehensively on the arrangements that make sense for you. Incidentally, you can conclude a prenuptial agreement at any time, even during the marriage.

There are various matrimonial property regimes, i.e. property law allocations. If there is no choice, the spouses live under the statutory matrimonial property regime of community of accrued gains after the marriage.

The community of accrued gains

If nothing is contractually agreed, all marriages are in the community of accrued gains matrimonial property regime. In the case of a community of accrued gains, the assets brought into the marriage by each spouse remain their property. There are no joint assets. In principle, everyone is allowed to dispose of their possessions as they wish. In the event of divorce, the matrimonial property regime of community of accrued gains ends. A so-called equalization of gains then takes place. In an equalization of accrued gains, the first step is to determine the amount by which the spouses have each increased their assets during the marriage. The respective assets at the beginning and end of the marriage are compared for both spouses and debts are deducted. The result is the gain. The difference between the two gains is then calculated and the party whose gain was smaller can demand half of the excess amount from the other party.

Inheritances and gifts are generally not included in the gain if one of the spouses receives them from a third party on the basis of a personal relationship. They are added to the initial assets and thus treated as if the respective spouse had already had them before the marriage, § 1374 para. 2 BGB. The payment of the equalization of accrued gains is tax-free.

The separation of property

If the spouses opt for separation of property in a marriage contract, there is no equalization in the event of divorce. Each spouse retains the assets that were previously his or her own and also what was earned during the marriage. This is practical in the event of a divorce. However, if the marriage ends not through divorce but through the death of one spouse, assets are given away because in the event of death, the surviving spouse does not receive a lump-sum (inheritance tax-free!) settlement of the gain that would otherwise be due under the community of accrued gains regime. A clever way to avoid these disadvantages is the modified community of accrued gains.

The modified community of accrued gains

If one spouse does not own large assets or company shares, it is advisable to agree a modified equalization of accrued gains instead of a separation of property. In this case, the community of accrued gains can be contractually adapted, i.e. it can only be applied under certain conditions; for example, one spouse’s company can be excluded from the equalization of accrued gains as part of the modified equalization of accrued gains.

In the event of divorce, the so-called pension equalization is always carried out by law. The entitlements or prospects for retirement or disability benefits acquired during the marriage are divided between the spouses. Pension equalization can be excluded at the request of the spouses. However, this only applies if both spouses have sufficient retirement provision or are in a position to build up such provision.

From the point of view of the principle of contractual freedom, so-called precautionary marriage contracts with exclusion clauses on gains, pension equalization and maintenance were largely considered permissible until 2001. After 2001, case law developed a standard of review for marriage contracts that incorporates the statutory family law provisions. In its landmark ruling of February 11, 2004, the BGH already stated that there can be no such thing as a universally valid and important marriage contract. This judgment and the subsequent decisions provide a guideline for the drafting of marriage contracts. Marriage contracts remain possible, sensible and necessary. The same applies to the divorce settlement agreement.

As a result of the decisions of the Federal Court of Justice, any marriage contract claiming that it contains an obviously one-sided and unjustifiable distribution of burdens can be subject to judicial review.

Examination and control of the marriage contract for legal effectiveness

The courts (and previously the advising lawyer and notary) must carry out a two-stage examination of the marriage contract, whereby the following must be taken into account

• Stage 1 the contract is subjected to an effectiveness check in accordance with § 138 BGB. The point in time at which the contract is concluded must be taken into account here. It is examined whether an obvious one-sided distribution of burdens was already envisaged “at that time” in the event of divorce.
• At level 2, the contract must stand up to an exercise control in accordance with Section 242 BGB. The relevant time for this examination is the time of the breakdown of the marriage, i.e. the question of whether “now” the contractual provisions are evidently unilaterally burdensome.

If the examination reveals an immorality at the first level or a breach of good faith at the second level, the contract is invalid.

The core area doctrine of the BGH

The BGH speaks of so-called core areas of the law on the consequences of divorce, which should be subject to special judicial review whenever deviations from the legal situation are agreed.

Jurisdiction is one of the core areas :

• care maintenance, for spouses who look after a small child under the age of three, § 1570 BGB
• old-age maintenance according to § 1571 BGB
• sickness maintenance according to § 1572 BGB
• health and pension maintenance, § 1578 para. 2, 1st alt., para. 3 BGB
• pension equalization as anticipated maintenance for old-age provision

Be classified lower in the ranking:

• Training and top-up maintenance
• property disputes, in particular the equalization of accrued gains (a detailed description of the matrimonial property regimes can be found above under 4).

The advising lawyer or notary must pay particular attention to the developments in case law that have occurred in the meantime and must make any intended deviations from the legal situation particularly clear in order to prevent the contestability of the marriage contract or the agreement on the consequences of divorce. The agreements must be well prepared and scrutinized in advance.

A marriage contract must be notarized .

It is possible to conclude a marriage contract at any time, both before the marriage and during the marriage. Contractual arrangements are also useful if you wish to separate and divorce. These contracts are called separation and divorce agreements. A divorce does not have to end in a war of the roses if you can agree on the consequences.

A marriage contract that has already been concluded can also be annulled, amended or supplemented by another one if there is mutual agreement. Both spouses must agree to the changes. Unilateral changes to existing marriage contracts cannot be made.

The advantage of a marriage contract drawn up by a family law lawyer is that he or she deals with family law issues on a daily basis and knows what is important in court, especially in the event of a dispute. Particularly in special constellations, such as patchwork families and company shareholdings, individual advice from an experienced lawyer for family law and corporate law is recommended.

In addition, a marriage contract drafted by a lawyer will usually get you a notarization appointment more quickly than if you want to have it drawn up by a notary. This is because the notary must first advise you on this.

There is also the following aspect, which certainly does not apply to all notaries, but is a general observation: Notaries have favorite transactions, which usually include those with high object values, such as in the area of real estate and corporate transactions. Notaries usually earn considerably less from marriage contracts and the value of the object is also decisive here. Notaries therefore no longer earn money from a marriage contract by advising clients in detail.

If you want to conclude a marriage contract, you can expect these questions from the lawyer:

• Is there already an agreement?
• Are there already inheritance dispositions (will)?
• Is one of the spouses or both entrepreneurs?
• Is there a pregnancy?
• Do you want to have children?
• Do you already have children, possibly from other partnerships?
• Would you like to make an arrangement regarding custody and contact?
• How should the marriage be categorized(housewife marriage/double-earner marriage)?
• What are your career intentions and what is your professional career to date?
• How long have you been working?
• What is the current asset situation?
• Are there already inherited assets, shareholdings in companies, real estate, other capital assets?
• Have you been living together for some time and acquired joint assets (property) before the marriage?
• What should the family name be and should it be retained in the event of divorce?
• What will happen to the pets?

Marriage contracts that are to be governed primarily by German law should, if possible, be notarized in German so that the legal terms can be used unambiguously. Automatic translations with minor adaptations are usually sufficient to reproduce the content of the contract in other languages. This must be translated by an interpreter during the notarization if there is no other way of ensuring that both spouses understand the words spoken by the notary.

The costs for the preparation of a marriage contract by us depend on the complexity and economic importance of the matter and are invoiced on the basis of an individual remuneration agreement.

The costs for notarization depend on the value of the subject matter, which is determined by the assets of the spouses.