Will my foreign prenuptial agreement recogneized by German courts?

You made a prenuptial agreement (german: Ehevertrag) with your spouse in your home country and now wish to get divorced in Germany? Your prenuptial agreement provides a solid foundation for an uncontested divorce. However, it must be clarified whether this agreement is recognized in Germany or not. If the foreign prenuptial agreement goes against German legal principles, it's highly likely to be invalid. Therefore, you might want to consider negotiating  divorce consequences agreement according to German law with your spouse.

Are there also prenuptial agreements in Germany?

Under German law, spouses can easily enter into a prenuptial agreement. Often, getting married is an occasion to define mutual rights and obligations in such an agreement. However, a prenuptial agreement can also be made at any time during the marriage. If separation and divorce are imminent, it's advisable to determine mutual rights and obligations through a divorce consequence agreement. A divorce consequence agreement is essentially a form of a prenuptial agreement.

Who typically has a prenuptial agreement in Germany? 

German law provides a set of default rules that govern the marriage and any subsequent divorce. A prenuptial agreement is not mandatory. However, in certain cases, entering into one might be advisable, such as when: 

• both partners have different nationalities and choose a particular jurisdiction for a potential divorce,
• at least one partner is an entrepreneur,
• both partners bring significantly different assets into the marriage
• or there is a considerable age difference between them.

Generally said, a prenuptial agreement can lower your divorce costs and reduce anger and stress for the spouses.

Can foreign nationals get divorced in Germany?

If you have foreign nationality, you can easily get divorced in Germany if you reside there. This also applies if your spouse lives abroad after your separation and you have remained in Germany.

Can my foreign prenuptial agreement be recognized in a divorce in Germany?

If you have made a prenuptial agreement in your home country abroad, it can generally be recognized in Germany. 

The condition is that it conforms to German legal principles and appropriately takes into account the mutual rights and obligations of the spouses. The primary concern is that 

• no spouse may be unreasonably disadvantaged and 
• nobody has dictated the prenuptial agreement according to their own interests. 

In detail see below.

Formal requirements

In Germany, a prenuptial agreement must generally be notarized (notarielle Beglaubigung). Without notarial certification, the contract is invalid. This is especially true when financial aspects are addressed in there. If the prenuptial agreement was not notarized in your home country, it must be checked whether the certification is equivalent to notarial certification according to the laws of your home country and can be similarly recognized.

Material requirements

The spouses largely have the freedom to define rights and duties at their discretion. There is, to a large extent, freedom of contract. However, jurisprudence has repeatedly emphasized that a marriage contract must not violate "good morals." Specifically, this means that the interests of both spouses must be adequately taken into account. The prenuptial agreement must reflect and result from negotiations between equal spouses. If, on the other hand, the contract is based on one spouse dominating the agreement and the other being in a subordinate position, the contract may often not be recognized in Germany.

Example: Moroccan law

A couple was married under Moroccan law. In a marital agreement, the divorced wife was to receive a compensation payment. This was meant to settle the claim for separation support. Nevertheless, during the divorce in Germany, the woman demanded separation support in cash. A German court ruled that the compensation payment under Moroccan law was not suitable for serving the purpose of separation support to ensure living expenses. The agreement was invalid. The wife was unfairly disadvantaged.

It is about the whole picture whether an agreement can be valid

It is essential to look at the overall view of all rights and obligations regulated in the prenuptial agreement. Even if a single agreement could be effective on its own, the marriage contract as a whole can be void if, in an overall perspective, it is determined that one spouse has been unfairly disadvantaged.

Example: Waiving three big ones

In a marriage contract, both spouses waived post-marital support, equalization of accrued gains, and pension rights adjustment. The Court clarified that each of these three waivers could have been valid on their own. However, upon an overall assessment, the prenuptial agreement was found to be against public morals and therefore invalid because, considering all the regulations, one spouse was unfairly disadvantaged. This is particularly the case if the wife is already pregnant at the time the marriage contract is concluded. Here, the spouses must be aware at the time of the contract that the wife will have to take a break from her professional life to care for the child and, due to the marriage contract, cannot acquire any provision rights.

Have your foreign prenuptial agreement reviewed by us!

Having the contract reviewed by a lawyer avoids the risk of presenting your foreign marriage contract to the German family court, only for the court to declare the contract invalid.

If you want to know precisely whether your foreign marriage contract can be recognized in Germany, you can let us formally and substantively review your marriage contract. If it turns out that the marriage contract violates German law, there is still the opportunity to regulate your mutual rights and obligations in a divorce consequences agreement according to German law. In doing so, the rights and obligations set out in your foreign marriage contract can generally be taken into account. 

Our law firm can assist you in drafting such an agreement and of course advise you on all other questions concerning your divorce. 

Please confidently reach out to us using the contact form below. 

Warm regards, Oliver Worms