INTERNATIONAL FAMILY LAW
International prenuptial agreements: choice of law, form, recognition
An international prenuptial agreement has to settle two things: which law governs your agreement, and whether it will also hold up where you live in ten years and where your assets are. An agreement that is faultless under German law but is not recognised in the other state is of little help to you. I draft prenuptial agreements with a foreign element at DR. SCHMIDT LEGAL myself.
One agreement, several governing laws: each question follows its own
The widespread misconception is that a prenuptial agreement is a package governed by one law. It is a collection of individual questions, and each has its own connecting factor. The property regime follows one, maintenance a second, divorce law a third, the pension rights adjustment a fourth.
As soon as two states are involved, each of those four questions can point in a different direction. Added to that is the second question many agreements never answer: where is the agreement supposed to take effect. A court abroad applies its own standard, and that standard can be stricter than the German one.
The property regime can be settled before the conflict rules settle it
The community of accrued gains is the statutory property regime of German law where nothing else is agreed. That is the provision business owners usually change with a prenuptial agreement, because otherwise the increase in the company's value falls into the equalisation. Where there is a foreign element, one question comes before that: does German law govern your property regime at all.
Without an agreement, the conflict-of-laws rules determine the governing property law, and the result depends on circumstances that may lie years in the past. That is precisely why the choice of law comes at the start of any drafting with a foreign element. It settles which law governs the property regime and makes the connection independent of any later move. The scope, however, is not unlimited.
Form: section 1410 German Civil Code is only the first hurdle
Under section 1410 German Civil Code a prenuptial agreement requires notarial recording with both parties present at the same time. No exchange by e-mail, no privately signed document, no signature by one in January and the other in March. That applies to the modified equalisation of accrued gains as well, that is, to the standard arrangement for business owners.
A German notarial deed is not automatically sufficient abroad. Some legal systems require additional conditions, such as separate legal advice for each side with their own lawyer, witnesses, registration or confirmation by a court. Which requirements apply in the individual case has to be established in the state concerned, and before the recording appointment.
Recognition: there is no automatic effect
A prenuptial agreement is not recognised simply because it came into being validly. A court abroad examines whether the choice of law was permissible under its own conflict rules, whether the form was observed, whether mandatory provisions stand in the way, and where it draws the limits of freedom of contract.
Under German law a prenuptial agreement is measured by whether it burdens one side one-sidedly. Other legal systems draw that line differently, in part more narrowly, particularly where maintenance and pension provision are waived. That is why an enquiry in the destination state belongs before the signature, not in the period after a separation.
Why international prenuptial agreements fail abroad
01
The choice of law is missing or stays unclear
The agreement settles figures but does not say which law applies. In a dispute the first question is the applicable law, and that argument costs more than the drafting would have cost.
02
There is only one language version
The agreement is recorded in German and one side barely speaks German. The allegation that she did not understand what she was signing is then in the room. With two versions and no language clause the opposite problem arises: two texts, two readings.
03
The formal requirements of two states collide
The recording follows section 1410 German Civil Code, while the other state requires separate legal advice for both sides or a registration. The agreement is valid in Germany and open to attack in the other state, which is precisely where the assets are.
04
Nobody checks in the destination state
The agreement is built for the planned move, but nobody asks a colleague in the destination state whether the arrangement holds there.
05
The clauses are one-sided
A complete waiver of maintenance and pension provision, with no compensation, signed shortly before the wedding. The clause may not survive a review of its content, and abroad the risk is often greater.
How I proceed
01
Recording the country connections and aims, with dates
I record who holds which nationality, where both lived before and after the wedding, which change of residence is planned and which assets lie in which state. Plus your aims.
02
Settling the programme of the agreement
Then we decide what the agreement covers: the choice of law, the property regime, business assets, maintenance, the pension rights adjustment and, where appropriate, the choice of divorce law. Each point comes with a statement of which state it is meant to take effect in.
03
Organising form, language and review in the destination state
I coordinate with the notary's office and have a second language version prepared where one side does not confidently understand the language of the document. In parallel, a colleague in the state concerned, or I myself, clarifies which formal requirements apply there.
04
Attending the recording and setting a review date
I attend the recording appointment. Afterwards we record when the agreement comes back on the table: before a move, on the birth of a child, on acquiring further shares.
A situation that arises regularly
01
Shares, a property here and a securities portfolio there
He is a shareholder and managing director of a German mid-sized company; she holds a different nationality and works for a group that will post her abroad in two years. The first task is to record the connecting factors and to make a choice of law that survives the move.
Office in Cologne, agreements for several legal systems
My office is at Jakordenstrasse 8 in 50668 Cologne. Clients from Cologne and the surrounding area, from Leverkusen, Bergisch Gladbach, Bruehl, Huerth, Kerpen or Frechen, usually attend in person. Anyone living further away or working abroad discusses the draft by video or phone, in German and in English.
A prenuptial agreement needs no court, but a notary. If it does come to proceedings years later, local jurisdiction follows the case and not the seat of my office. What else I handle with a foreign element is set out on the overview page for international family law in Cologne.
MORE TOPICS
More on international family law
YOUR QUESTIONS
Frequently asked questions
That is not decided by one law for the whole agreement but by each question separately. The property regime, maintenance, the pension rights adjustment and divorce law each have their own connecting factors. That is why the choice of law comes at the start of any drafting with a foreign element. It settles which law applies and detaches the agreement from a move. How far a choice is permissible follows the conflict rules of the states involved.
Under German law yes: a prenuptial agreement requires notarial recording with both parties present at the same time (section 1410 German Civil Code). Separate signatures, a private document or an exchange by e-mail are not sufficient. Other states have their own requirements, and a German notarial deed is not automatically sufficient there. What applies is established for each state concerned before the recording appointment.
The recording takes place in the language of the document, so in Germany usually in German. Where one side does not confidently understand that language, an interpreter belongs at the appointment, and a written translation is usually attached to the deed. With a bilingual version the agreement itself has to say which language version governs in a dispute. The sensible choice is the version whose law was chosen.
Not automatically. A court abroad examines under its own rules whether the choice of law was permissible, whether the form was observed and where it draws the limits of freedom of contract. Other legal systems draw that line more narrowly in part. That is why, for agreements with a clear connection to another state, I obtain feedback from a colleague there before signature.
I bill by time; my hourly rate is 280 euros plus 19% VAT. You receive the fee agreement before we start. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. The initial consultation is also billed by time. Reviewing an existing deed before a move stays modest. Notary costs and the costs of foreign advisers are additional.
Have a prenuptial agreement with a foreign element drafted or reviewed
If a move is coming up, a wedding is planned or your existing agreement is older than your current financial position, we will look at the connecting factors together. Appointments are also possible by video or phone, in German and in English.
INTERNATIONAL FAMILY LAW
International prenuptial agreements: choice of law, form, recognition
An international prenuptial agreement has to settle two things: which law governs your agreement, and whether it will also hold up where you live in ten years and where your assets are. An agreement that is faultless under German law but is not recognised in the other state is of little help to you. I draft prenuptial agreements with a foreign element at DR. SCHMIDT LEGAL myself.
One agreement, several governing laws: each question follows its own
The widespread misconception is that a prenuptial agreement is a package governed by one law. It is a collection of individual questions, and each has its own connecting factor. The property regime follows one, maintenance a second, divorce law a third, the pension rights adjustment a fourth.
As soon as two states are involved, each of those four questions can point in a different direction. Added to that is the second question many agreements never answer: where is the agreement supposed to take effect. A court abroad applies its own standard, and that standard can be stricter than the German one.
The property regime can be settled before the conflict rules settle it
The community of accrued gains is the statutory property regime of German law where nothing else is agreed. That is the provision business owners usually change with a prenuptial agreement, because otherwise the increase in the company's value falls into the equalisation. Where there is a foreign element, one question comes before that: does German law govern your property regime at all.
Without an agreement, the conflict-of-laws rules determine the governing property law, and the result depends on circumstances that may lie years in the past. That is precisely why the choice of law comes at the start of any drafting with a foreign element. It settles which law governs the property regime and makes the connection independent of any later move. The scope, however, is not unlimited.
Form: section 1410 German Civil Code is only the first hurdle
Under section 1410 German Civil Code a prenuptial agreement requires notarial recording with both parties present at the same time. No exchange by e-mail, no privately signed document, no signature by one in January and the other in March. That applies to the modified equalisation of accrued gains as well, that is, to the standard arrangement for business owners.
A German notarial deed is not automatically sufficient abroad. Some legal systems require additional conditions, such as separate legal advice for each side with their own lawyer, witnesses, registration or confirmation by a court. Which requirements apply in the individual case has to be established in the state concerned, and before the recording appointment.
Recognition: there is no automatic effect
A prenuptial agreement is not recognised simply because it came into being validly. A court abroad examines whether the choice of law was permissible under its own conflict rules, whether the form was observed, whether mandatory provisions stand in the way, and where it draws the limits of freedom of contract.
Under German law a prenuptial agreement is measured by whether it burdens one side one-sidedly. Other legal systems draw that line differently, in part more narrowly, particularly where maintenance and pension provision are waived. That is why an enquiry in the destination state belongs before the signature, not in the period after a separation.
Why international prenuptial agreements fail abroad
01
The choice of law is missing or stays unclear
The agreement settles figures but does not say which law applies. In a dispute the first question is the applicable law, and that argument costs more than the drafting would have cost.
02
There is only one language version
The agreement is recorded in German and one side barely speaks German. The allegation that she did not understand what she was signing is then in the room. With two versions and no language clause the opposite problem arises: two texts, two readings.
03
The formal requirements of two states collide
The recording follows section 1410 German Civil Code, while the other state requires separate legal advice for both sides or a registration. The agreement is valid in Germany and open to attack in the other state, which is precisely where the assets are.
04
Nobody checks in the destination state
The agreement is built for the planned move, but nobody asks a colleague in the destination state whether the arrangement holds there.
05
The clauses are one-sided
A complete waiver of maintenance and pension provision, with no compensation, signed shortly before the wedding. The clause may not survive a review of its content, and abroad the risk is often greater.
How I proceed
01
Recording the country connections and aims, with dates
I record who holds which nationality, where both lived before and after the wedding, which change of residence is planned and which assets lie in which state. Plus your aims.
02
Settling the programme of the agreement
Then we decide what the agreement covers: the choice of law, the property regime, business assets, maintenance, the pension rights adjustment and, where appropriate, the choice of divorce law. Each point comes with a statement of which state it is meant to take effect in.
03
Organising form, language and review in the destination state
I coordinate with the notary's office and have a second language version prepared where one side does not confidently understand the language of the document. In parallel, a colleague in the state concerned, or I myself, clarifies which formal requirements apply there.
04
Attending the recording and setting a review date
I attend the recording appointment. Afterwards we record when the agreement comes back on the table: before a move, on the birth of a child, on acquiring further shares.
A situation that arises regularly
01
Shares, a property here and a securities portfolio there
He is a shareholder and managing director of a German mid-sized company; she holds a different nationality and works for a group that will post her abroad in two years. The first task is to record the connecting factors and to make a choice of law that survives the move.
Office in Cologne, agreements for several legal systems
My office is at Jakordenstrasse 8 in 50668 Cologne. Clients from Cologne and the surrounding area, from Leverkusen, Bergisch Gladbach, Bruehl, Huerth, Kerpen or Frechen, usually attend in person. Anyone living further away or working abroad discusses the draft by video or phone, in German and in English.
A prenuptial agreement needs no court, but a notary. If it does come to proceedings years later, local jurisdiction follows the case and not the seat of my office. What else I handle with a foreign element is set out on the overview page for international family law in Cologne.
MORE TOPICS
More on international family law
YOUR QUESTIONS
Frequently asked questions
That is not decided by one law for the whole agreement but by each question separately. The property regime, maintenance, the pension rights adjustment and divorce law each have their own connecting factors. That is why the choice of law comes at the start of any drafting with a foreign element. It settles which law applies and detaches the agreement from a move. How far a choice is permissible follows the conflict rules of the states involved.
Under German law yes: a prenuptial agreement requires notarial recording with both parties present at the same time (section 1410 German Civil Code). Separate signatures, a private document or an exchange by e-mail are not sufficient. Other states have their own requirements, and a German notarial deed is not automatically sufficient there. What applies is established for each state concerned before the recording appointment.
The recording takes place in the language of the document, so in Germany usually in German. Where one side does not confidently understand that language, an interpreter belongs at the appointment, and a written translation is usually attached to the deed. With a bilingual version the agreement itself has to say which language version governs in a dispute. The sensible choice is the version whose law was chosen.
Not automatically. A court abroad examines under its own rules whether the choice of law was permissible, whether the form was observed and where it draws the limits of freedom of contract. Other legal systems draw that line more narrowly in part. That is why, for agreements with a clear connection to another state, I obtain feedback from a colleague there before signature.
I bill by time; my hourly rate is 280 euros plus 19% VAT. You receive the fee agreement before we start. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. The initial consultation is also billed by time. Reviewing an existing deed before a move stays modest. Notary costs and the costs of foreign advisers are additional.
Have a prenuptial agreement with a foreign element drafted or reviewed
If a move is coming up, a wedding is planned or your existing agreement is older than your current financial position, we will look at the connecting factors together. Appointments are also possible by video or phone, in German and in English.
INTERNATIONAL FAMILY LAW
International prenuptial agreements: choice of law, form, recognition
An international prenuptial agreement has to settle two things: which law governs your agreement, and whether it will also hold up where you live in ten years and where your assets are. An agreement that is faultless under German law but is not recognised in the other state is of little help to you. I draft prenuptial agreements with a foreign element at DR. SCHMIDT LEGAL myself.
One agreement, several governing laws: each question follows its own
The widespread misconception is that a prenuptial agreement is a package governed by one law. It is a collection of individual questions, and each has its own connecting factor. The property regime follows one, maintenance a second, divorce law a third, the pension rights adjustment a fourth.
As soon as two states are involved, each of those four questions can point in a different direction. Added to that is the second question many agreements never answer: where is the agreement supposed to take effect. A court abroad applies its own standard, and that standard can be stricter than the German one.
The property regime can be settled before the conflict rules settle it
The community of accrued gains is the statutory property regime of German law where nothing else is agreed. That is the provision business owners usually change with a prenuptial agreement, because otherwise the increase in the company's value falls into the equalisation. Where there is a foreign element, one question comes before that: does German law govern your property regime at all.
Without an agreement, the conflict-of-laws rules determine the governing property law, and the result depends on circumstances that may lie years in the past. That is precisely why the choice of law comes at the start of any drafting with a foreign element. It settles which law governs the property regime and makes the connection independent of any later move. The scope, however, is not unlimited.
Form: section 1410 German Civil Code is only the first hurdle
Under section 1410 German Civil Code a prenuptial agreement requires notarial recording with both parties present at the same time. No exchange by e-mail, no privately signed document, no signature by one in January and the other in March. That applies to the modified equalisation of accrued gains as well, that is, to the standard arrangement for business owners.
A German notarial deed is not automatically sufficient abroad. Some legal systems require additional conditions, such as separate legal advice for each side with their own lawyer, witnesses, registration or confirmation by a court. Which requirements apply in the individual case has to be established in the state concerned, and before the recording appointment.
Recognition: there is no automatic effect
A prenuptial agreement is not recognised simply because it came into being validly. A court abroad examines whether the choice of law was permissible under its own conflict rules, whether the form was observed, whether mandatory provisions stand in the way, and where it draws the limits of freedom of contract.
Under German law a prenuptial agreement is measured by whether it burdens one side one-sidedly. Other legal systems draw that line differently, in part more narrowly, particularly where maintenance and pension provision are waived. That is why an enquiry in the destination state belongs before the signature, not in the period after a separation.
Why international prenuptial agreements fail abroad
01
The choice of law is missing or stays unclear
The agreement settles figures but does not say which law applies. In a dispute the first question is the applicable law, and that argument costs more than the drafting would have cost.
02
There is only one language version
The agreement is recorded in German and one side barely speaks German. The allegation that she did not understand what she was signing is then in the room. With two versions and no language clause the opposite problem arises: two texts, two readings.
03
The formal requirements of two states collide
The recording follows section 1410 German Civil Code, while the other state requires separate legal advice for both sides or a registration. The agreement is valid in Germany and open to attack in the other state, which is precisely where the assets are.
04
Nobody checks in the destination state
The agreement is built for the planned move, but nobody asks a colleague in the destination state whether the arrangement holds there.
05
The clauses are one-sided
A complete waiver of maintenance and pension provision, with no compensation, signed shortly before the wedding. The clause may not survive a review of its content, and abroad the risk is often greater.
How I proceed
01
Recording the country connections and aims, with dates
I record who holds which nationality, where both lived before and after the wedding, which change of residence is planned and which assets lie in which state. Plus your aims.
02
Settling the programme of the agreement
Then we decide what the agreement covers: the choice of law, the property regime, business assets, maintenance, the pension rights adjustment and, where appropriate, the choice of divorce law. Each point comes with a statement of which state it is meant to take effect in.
03
Organising form, language and review in the destination state
I coordinate with the notary's office and have a second language version prepared where one side does not confidently understand the language of the document. In parallel, a colleague in the state concerned, or I myself, clarifies which formal requirements apply there.
04
Attending the recording and setting a review date
I attend the recording appointment. Afterwards we record when the agreement comes back on the table: before a move, on the birth of a child, on acquiring further shares.
A situation that arises regularly
01
Shares, a property here and a securities portfolio there
He is a shareholder and managing director of a German mid-sized company; she holds a different nationality and works for a group that will post her abroad in two years. The first task is to record the connecting factors and to make a choice of law that survives the move.
Office in Cologne, agreements for several legal systems
My office is at Jakordenstrasse 8 in 50668 Cologne. Clients from Cologne and the surrounding area, from Leverkusen, Bergisch Gladbach, Bruehl, Huerth, Kerpen or Frechen, usually attend in person. Anyone living further away or working abroad discusses the draft by video or phone, in German and in English.
A prenuptial agreement needs no court, but a notary. If it does come to proceedings years later, local jurisdiction follows the case and not the seat of my office. What else I handle with a foreign element is set out on the overview page for international family law in Cologne.
MORE TOPICS
More on international family law
YOUR QUESTIONS
Frequently asked questions
That is not decided by one law for the whole agreement but by each question separately. The property regime, maintenance, the pension rights adjustment and divorce law each have their own connecting factors. That is why the choice of law comes at the start of any drafting with a foreign element. It settles which law applies and detaches the agreement from a move. How far a choice is permissible follows the conflict rules of the states involved.
Under German law yes: a prenuptial agreement requires notarial recording with both parties present at the same time (section 1410 German Civil Code). Separate signatures, a private document or an exchange by e-mail are not sufficient. Other states have their own requirements, and a German notarial deed is not automatically sufficient there. What applies is established for each state concerned before the recording appointment.
The recording takes place in the language of the document, so in Germany usually in German. Where one side does not confidently understand that language, an interpreter belongs at the appointment, and a written translation is usually attached to the deed. With a bilingual version the agreement itself has to say which language version governs in a dispute. The sensible choice is the version whose law was chosen.
Not automatically. A court abroad examines under its own rules whether the choice of law was permissible, whether the form was observed and where it draws the limits of freedom of contract. Other legal systems draw that line more narrowly in part. That is why, for agreements with a clear connection to another state, I obtain feedback from a colleague there before signature.
I bill by time; my hourly rate is 280 euros plus 19% VAT. You receive the fee agreement before we start. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. The initial consultation is also billed by time. Reviewing an existing deed before a move stays modest. Notary costs and the costs of foreign advisers are additional.
Have a prenuptial agreement with a foreign element drafted or reviewed
If a move is coming up, a wedding is planned or your existing agreement is older than your current financial position, we will look at the connecting factors together. Appointments are also possible by video or phone, in German and in English.