Prenuptial Agreement: Yes or No? Everything You Need to Know About Separation of Property & More

Prenups are like Barney Stinson. They’re seen as cold, calculating, unromantic, and only out for their own gain. But wait for it: At their core, they’re hopeless romantics.

Yes, drawing up a prenup means thinking about a possible divorce. Especially in the endorphin-fueled emotional rush of an engagement, that might not be the most pleasant topic to plan for. Yet that’s exactly the perfect time to do it. After all, a prenup is mainly about sharing something with your partner, and when would you be more willing to do that than at the very moment you’ve decided to share the rest of your lives together?

What is covered in a prenuptial agreement?

In general, a prenuptial agreement in Germany can contain binding provisions regarding property matters. These include, for example, the matrimonial property regime—that is, whether assets are treated as joint or separate property during the marriage—as well as spousal support in the event of separation or divorce. Pension rights equalization—in which pension entitlements are distributed between the partners—as well as agreements regarding inheritance and the allocation of debts can also be included in a prenuptial agreement.

Without a prenuptial agreement, the community of accrued gains automatically applies—which means that any assets acquired during the marriage are divided equally in the event of a divorce. Those who do not wish this can agree to separate property or a modified community of accrued gains through a prenuptial agreement, for example, to protect a business or real estate. Important: A prenuptial agreement must be notarized to be legally valid (Section 1410 of the German Civil Code (BGB)).

Why do you need a prenuptial agreement?

Under German marriage law, the so-called “community of accrued gains” applies automatically. This means that during the marriage, the assets of both partners remain legally separate—in other words, “what’s yours is yours, and what’s mine is mine.” Only in the event of a divorce is an assessment made of who has accrued how much in assets, and this accrued gain is divided between the spouses. What works well with toothbrushes or clothes becomes complicated, at the latest, when it comes to jointly acquired property.

So it’s important to note: Whether or not to enter into a prenuptial agreement is above all a question of perspective—the focus isn’t on mistrust, but on the desire for clarity, fairness, and mutual respect.

When can a prenuptial agreement be drawn up?

In Germany, a prenuptial agreement can be entered into before or during the marriage. There is no legal requirement to do so, but it is advisable to finalize the agreement before the wedding, if possible, to avoid conflicts later on.

How is a prenuptial agreement entered into?

In principle, all you need for a prenuptial agreement is a notary, but it is recommended that you also hire a family law attorney. Even though numerous prenuptial agreement templates online may give the impression that you can do without a lawyer, legal experts advise against this. Only a lawyer who takes a personalized approach to your case is able to draft a prenuptial agreement using clear and unambiguous language that leaves no room for interpretation.

How much does a prenuptial agreement cost?

In a list of the phrases you hear most often at a law firm, “A prenuptial agreement is always cheaper than a difficult divorce” definitely makes it into the top 10. But even though we’re introducing the topic of “the cost of a prenuptial agreement” in a somewhat casual way here, there’s actually some truth to the statement: In many cases, a prenuptial agreement is significantly cheaper than an expensive divorce dispute. The costs depend primarily on the assets of both partners. The notary calculates their fees based on what’s known as “net assets”—that is, assets minus any potential debts. This results in what’s known as the “transaction value,” which serves as the basis for the notary’s fees. Lawyer’s fees, on the other hand, depend on which issues are addressed in the prenuptial agreement—for example, spousal support, real estate, or the equalization of marital gains. The more issues that are addressed, the higher the lawyer’s fee may be.

The Romance of the Prenuptial Agreement

Admittedly, compared to a love poem or a love song, a prenuptial agreement doesn’t seem very romantic. But it’s a matter of perspective. If you’re engaged right now and decide to draw up a prenuptial agreement, what’s written in it is nothing more than a list of what you wish for each other—regardless of what the future may hold. From that perspective, a prenuptial agreement is actually a little bit romantic, isn’t it?