Prenuptial Agreements in Germany

Default Matrimonial Property Regime

According to the German Civil Code (Bürgerliches Gesetzbuch, or BGB), the default matrimonial property regime in Germany is the community of accrued gains (Zugewinngemeinschaft). This regime applies automatically when a couple marries, unless they choose a different arrangement through a formal agreement.

Optional Property Regimes

The BGB also allows couples to choose between two alternative matrimonial property regimes:

• Separation of Property (Gütertrennung), where each spouse retains individual ownership of their assets.
  
  
• General Community of Property (Gütergemeinschaft), where all assets are jointly owned.
  
  

Limitations and Court Review

Germany’s Federal Court of Justice has ruled that notarized prenuptial agreements may be declared invalid if they place one spouse at a significant disadvantage. The court emphasized that while a contract can include a waiver of alimony, such clauses must not be excessively one-sided. If an agreement is deemed morally unacceptable due to its imbalance, it can be legally challenged.

Furthermore, a spouse may contest the agreement if there is a substantial disparity in financial contributions during the marriage, for example, if one spouse stayed home to care for children while the other’s income increased significantly.

Restrictions on Foreign Law

German law does not permit marriage contracts to be governed by foreign law. Any such provision would be considered invalid.