In a recent decision, the Federal Court of Justice (BGH) confirmed that the exclusion of equalisation of gains in marriage contracts - even in the case of marriages between entrepreneurs - can be effective in principle, provided there were no serious imbalances when the contract was concluded.
Facts of the case:
The parties had concluded a notarised marriage contract in December 2010 - shortly before the marriage. In it, separation of property was agreed, post-marital maintenance was partially modified and a mutual waiver of statutory inheritance and compulsory portion rights was agreed. Pension equalisation remained unaffected.
At the time the agreement was concluded, the defendant worked as a management consultant and earned a gross monthly income of around € 4,200. She had completed a degree in business administration and was the managing director of a GmbH. The applicant was a partner and partly managing director in several of his family's companies. The partnership agreements in these companies stipulated that the spouses of the partners must contractually agree on the separation of property.
The relationship/marriage produced a total of four children. After the petition for divorce was served in 2021, the respondent claimed equalisation of gains in the joint divorce proceedings and invoked the immorality of the marriage contract.
Decision:
The BGH dismissed the respondent's appeal on points of law. The marriage contract was valid; in particular, it lacked both objective immorality and subjective imparity.
The court found that the respondent had received independent financial and legal advice (including from her father, a lawyer and a notary) when concluding the contract. It was also not objectionable that the applicant had made the marriage dependent on the conclusion of a marriage contract - this did not constitute an inadmissible coercive situation.
The agreement on the separation of property is legitimate in a business context, especially if - as here - the family assets are to be protected from possible claims in the event of divorce.
Practical note:
With this decision, the BGH reaffirms its line: although marriage contracts are subject to content and exercise control, they remain effective if they are concluded without unfair pressure situations - even if they have an objectively one-sided effect. A contractual exclusion of the equalisation of accrued gains is legally permissible, particularly in the case of marriages between entrepreneurs, provided that the disadvantaged spouse is not left unprotected.
Conclusion and recommendation for action:
The decision of the BGH shows once again that marriage contracts - especially in business marriages - are permissible and legally resilient, even if they appear to be economically one-sided. The decisive factor is that they not under duress or from a weak negotiating position were closed.
For entrepreneurs and wealthy spouses a prenuptial agreement drawn up at an early stage is an effective means of securing business assets and the economic capacity to act even in the event of divorce. At the same time the interests of the economically weaker partner must be taken into account in order to avoid legal risks (e.g. immorality).
We recommend:
- Have marriage contracts Check legally in advance or customiseto avoid disputes later on.
- Pay attention to Transparency, fairness and independent legal advice for both sides.
- Keep important agreements in writing and in a comprehensible manner - in particular on the initial economic situation and the motives.
We are happy to support you in drafting or reviewing a prenuptial agreement - both preventively and in the event of a conflict.
Dr Marko Oldenburger
Specialist lawyer for family law and medical law
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