PRENUPTIAL AGREEMENTS IN GERMANY

Germany

Prenuptial agreements are enforceable in Germany, subject to many limitations. They must be executed before a notary. The German Burgerliches Gesetzbuch (BGB)provides that a set matrimonial property regime, that of community of accrued gains or “Zugewinngemeinschaft”, applies between the spouses automatically upon marriage unless they select another arrangement by contract. The BGB also provides for two optional matrimonial property regimes, one of which is a system of exclusion of any community of property (Gutertrennung) and the other is a system of general community of property (Gutergemeinschaft).

Germany's Federal Court of Justice has ruled that notarized prenuptial agreements that seriously disadvantage one party in a marriage may be deemed invalid. The judges stated that while, in principle, a contract may state that one of the partners has renounced his or her right to receive alimony, if the agreement is one-sided it would be morally unacceptable and could therefore be challenged. The court also ruled that a spouse is free to contest the contract in instances of imbalance where her partner's income has risen dramatically during the marriage because, for example, she was home caring for children.

In Germany it is not permitted to provide in marriage contracts that they will be governed by foreign law.




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