Rechtsanwältin und Notarin
Fachanwältin für Strafrecht
Attorney at Law
Certified Specialist for Criminal Law
Telefon: +49 421 3345666
Mitglied des Vorstandes
Listed as attorney and notary public by the Embassy of the United States of America Berlin and the Consulate General in Frankfurt am Main.
Listed as attorney and notary public by the Embassy of Canada Berlin.
Mitglied der Arbeitsgemeinschaft Strafrecht des DAV und Mitglied der Arbeitsgemeinschaft Anwalts-notariat im DAV
Mitglied der Deutschen Notarrecht-lichen Vereinigung e.V.
The marriage has significant legal and economic consequences, which a couple should previously take into account.
Marriage contract and divorce agreement
For the case of in modern times often occurring divorce, the law provides certain legal consequences. Given the diversity of today’s marriage models, the statutory law rarely reflects the ideas of the spouses.
Therefore, it is almost always advisable to check before or after a marriage with a civil law notary on the possibilities of a marriage contract (pre- or postnuptial agreement). In a counseling session the notary will – according to the client‘s marriage modell - demonstrate the suitable variations and modifications. At the same time I am also taking into account the limits for the freedom of contract created by the legislation and the jurisdiction of the federal high court of justice (BGH).
Regularly there are three potential regulatory matters to discuss:
Is there a need for a modified legal property regime or must the statutory regime of the community of surplus be replaced by the regime of separate property?
Shall pension entitlements be fully compensated in the event of divorce?
Is there a need to limit or expand the statutory maintenance claims?
In addition, as a notary public I keep always sensible accompanying measures such as enduring power of attorneys and inheritance declarations in view.
If the spouses have not regulated the divorce consequences in advance or the previously made agreement does not fit to the current situation, an amicable divorce can considerably shorten a long, expensive and nerve-sapping litigation. However, this requires a notarized divorce agreement. This contains the rules usually contained in a marriage contract (prenuptial agreement). It also includes provisions concerning custody and visitation rights of parents with children, the distribution of the household and the use of the marital home.
Agreements of registered couples
Same-sex couples can establish a so called “registered partnership”, which largely simulates the legal concept of marriage. If the partners want to modify the statutory provisions relating to the matrimonial property status, vary the extent of maintenance claims or regulate the compensation of pension entitlements, an individual contract has to be notarized. In correspondence to a divorce agreement of spouses a notarized agreement concerning the essential legal consequences can greatly simplify the judicial process in the event of a termination of a registered partnership.
Agreements of unwed or non-registered couples
For unmarried or non-registered couples, the legal regulations for marriage and divorce do not apply generally. Therefore, it is even more recommended to conclude agreements concerning the legal issues of cohabitation and the consequences of a possible separation. This is especially necessary, if children emerge from the joint relationship or major purchases, such as a self-occupied real property, are made together. Again, the notary public as a neutral third party will search for a balanced solution.
Issues of parents and child
Also in the parent-child relationship some declerations require the notarized form.
For non-married couples, the notary public notarizes the declaration of joint custody and the acknowledgment of paternity. But also in relation to the initiation of adoption proceedings, the legislature has stipulated the involvement of the notary public as a competent service provider.
The German Civil Code expressly deals with prenuptial agreements. It allows pre- or post-nuptial agreements. Matrimonial Property Provisions, Maintenance and Pension Provisions are threeseparate issues and can be subject of marriage contracts. Under German law the parties may agree upon children issues in their matrimonial contract but such clauses are not binding and can be altered or declared void by the court at any time if the court comes to the result that such clauses do not protect the welfare of the children sufficiently.
A prenuptial agreement has to be notarized in presence of both parties (§ 1410 BGB). The content of the contract has to be notarized in its entity.
It should be noted that, according to German law, parties to a prenuptial agreement do not have to be represented by legal counsel either before or during the signing of the prenuptial agreement. It is the responsibility of the notary public to instruct the parties and explain the significance and ramifications of their declarations. Notaries are deemed to be absolutely impartial than regular attorneys. However, each party is free to seek legal counsel before executing a prenuptial agreement, but German law does not require that the parties obtain independent legal advice prior to signing the prenuptial agreement. The rule is that the parties should have the opportunity to seek individual legal advice if they want to. Therefore a draft of the contract should be sent to them giving them sufficient time to do so. Full disclosure of the assets of the parties before signing the agreement is not required under German law.
Prevailing case about the effectivness of prenuptial agreements
The German courts do have jurisdiction to set aside prenuptial agreements (or aspects of them) in certain circumstances.
By judging the effectiveness of marriage contracts the judgment of the Federal Constitutional Court (BverfG) dated February 6, 2001, and the decision of the Federal Constitutional Court dated March 9, 2001, mark a turning point. In part these two decisions are diametrically opposed to the previous jurisdiction where it was held that a court cannot interfere in the freedom of husband and wife to contract according to their wishes.
The Federal Constitutional Court argued that, in civil law, the civil rights above all develop their effectiveness through the general clauses of civil law. In this respect, the Sections 138 and 242 German Civil Code (BGB) above all are relevant.
The Federal Constitutional Court speaks of two conditions upon the fulfilment of which the State has to intervene in a corrective manner:
- an unequal negotiating position (e.g. pregnancy) and
- a particularly one-sided imposition of contractual burdens.
The Federal Court of Justice (BGH) has implemented the principles of the Federal Constitutional Court (BVerfG) in its judgment dated February 11, 2004.
The are no fixed rules for the application of Section 138 or Section 242 German Civil Code (BGB).
What is required is an overall examination of the agreement concerned, of the reasons and circumstances of its conclusion and the intended and realized organisation of married life. There is no unrenounceable minimum content of the legal consequences of divorce, but there are central issues (namely maintenance, matrimonial property right and adjustment of pension rights). The Federal Court of Justice directs the fact-finding judge when examining the agreement to take two principal steps:
The first step is the examination of effectiveness within the meaning of Sec. 138 German Civil Code, viz, the examination of any violation of bonos mores by the contract with reference to the time of the conclusion of the contract. A marriage contract will be considered to be contrary to public policy only if regulations from the central issues of the law governing the legal consequences of divorce are totally, or at least in central parts, contracted out of the contract. However, also regulations affecting the central issues will be possible if such effects are mitigated by other advantages, or if they are justified by special circumstances of the spouses, the type of marriage desired or lived by them or by other important interests of the benefiting spouse.
Should the question of any violation of bonos mores be answered in the negative the second step (Ausübungskontrolle) will be the examination of the marriage contract in accordance with Section 242 German Civil Code (BGB) at the time of the separation of the parties. In this case, the judge will have to examine whether and to what extend, a spouse misuses the right granted to him by the contract in the light of the relevant circumstances at the time of the separation, irrespective of whether or not those circumstances were foreseeable already at the time of conclusion of the contract.
Marital Property Law in Germany
Unless the spouses have provided for otherwise by entering into a marriage contract, the statutory regime of the spouses’ community of accrued gains applies according to secs. 1363 BGB et seq.
Without specific contractual agreement the spouses are subject to the statutory regime of community of accrued gain.
This marital property regime is based on the principle of separation of property. Thus, both spouses’ assets will generally remain separated. Each spouse will, therefore, remain the sole owner of the assets he or she owned on marriage. Each spouse is independently responsible for his or her assets. There is no automatic liability for the other spouse’s debts unless specification agreed upon with such spouse’s creditor or the contract in question concerns the purchase of necessaries (so-called “Schlüsselgewalt”).
The main difference between the statutory regime of community of accrued gains and the marital regime of separation of goods is that the former requires an equalization of accrued gains if the marriage ends either through death or divorce. Equalization of accrued gains takes place in the event the marriage is terminated during the lifetime of the spouses, in particular in the event of divorce, sec. 1372 et seq. BGB. Here, the first step is to separately determine the gains accrued to each spouse during marriage. The spouse who achieved higher gains is required to compensate the other to the amount of ½ of the excess sum. This claim is a claim for payment that becomes due and payable on the date of the court’s decision on when the divorce is to become final and binding, sec. 1378 BGB.
For the purpose of calculating the accrued gains, each spouse’s assets at the end of the marital regime have to be compared with the assets at the beginning of the marriage, sec. 1373 BGB (as said above former cohabitation is irrelevant ).
The assets at the end of the marital property regime comprise all assets of the spouses on the date such marital property regime was terminated, sec. 1375 BGB. In the event of termination by divorce, the decisive date for calculation of each spouse’s accrued gains is the date of service of the divorce writ, sec. 1384 BGB. The decisive date for computing and evaluating the assets at the beginning of the marital regime is the date of marriage act. Accrued gain is the amount by which the final assets of a spouse exceed his initial assets, sec. 1373 BGB. Assets and liabilities have to be taken into account with their values at their respective dates. The balance, thus, has to be determined. Since many years may have passed between the beginning and the end of a marriage and since values may have significantly decreased over the years, the law requires a valuation of the assets at the beginning of marriage taking into consideration the circumstances at the time of termination of marriage. In practice, values are discounted by applying the cost-of-living index.
The formula is as follows:
Value of the assets at the beginning of the marriage multiplied with the cost of living index at the time of the end of the marriage divided by the cost of living index at the end of the marriage. The result of this calculation is the actual value for the assets at the beginning of the marriage which will be compared with the value of the end of the marriage to determine the accrued gains.
The law requires each spouse to sufficiently inform the other of his or her assets at the end of the matrimonial property regime. Furthermore, the spouses are obligated to produce documentary evidence necessary to determine and value assets, sec. 1379 BGB. A spouse claiming that he or she had certain assets at the beginning of the marital property regime has to provide sufficient evidence of this in the event of litigation. Otherwise, all assets owned at the end of the marital property regime will be treated as accrued gains, sec. 1377 para 3 BGB. In other words, in a litigation the plaintiff is required to sufficiently prove that the other spouse was the owner of assets at the end of the marital property regime exceeding his own accrued gains. Should the plaintiff be in a position to successfully prove this allegation and should the defendant in return claim that this assets at the end of the marital property regime must not be treated as his accrued gains since he had certain assets at the beginning of the marriage he carries the burden of proof with regard to this allegation.
In the event the spouses mutually set out a list itemizing all of their assets at the beginning of the marital property regime, this list is subject to rebuttable presumption of completeness and correctness, sec. 1377 para. 1 BGB.
German law allows the parties with pre- or post-nuptial contracts to stipulate the amount of the initial property. It also allows to limit and vary the amount of equalisation of accrued gains at the end of the marriage as long as such stipulation does not violate Section 138 or Section 242 of the German Civil Code.
Should the fulfilment of one spouse’s claim for the equalisations lead to unreasonable disadvantages for the obligated spouse, her or she may apply for a moratorium-order. However, he or she will be required to at least pay the interest accruing and – under certain circumstances – provide sufficient security, sec. 1382 BGB.
Maintenance Rules in Germany
Maintenance between spouses after a divorce is ruled in Sections 1569 and following of the German Civil Code (BGB).
The parties do have the right to agree to stipulate otherwise.
The principle rule is that each party shall care for itself after a divorce and shall not be entitled to claim maintenance from the other party but there are several exceptions.
The system of pension splitting in Germany
Such system is based on the same principle than the distribution of matrimonial property. Pension rights acquired during the marriage have to be split between husband
and wife equally upon a divorce. Such pension splitting is complete separate issues and will not be mingled with matrimonial property rights. Upon pending divorce proceedings the court is obliged without any specific petition of the parties to obtain ex officio the information about acquired pension rights and then split them equally.
The parties are entitled to stipulate such pension rights in agreement and could even fully waive such rights within the general limits as already explained above.
Choice of law
German law allows a choice of law under certain circumstances but limited to General Effects of the Marriage (Art. 14 EGBGB) and Matrimonial Property Regime (Art. 15 EGBGB). Agreements regarding jurisdiction are not recognised under German law except regarding maintenance according to Art. 23 Brussels I or parental responsibility according to Art. 12 Brussels II bis. Since agreements regarding jurisdiction are not recognised a German court will ignore such clause and apply jurisdiction according to German Law or Brussels II.The choice of the applicable law must be notarised.