Having a marriage contract notarised

The community of accrued gains under § 1363 BGB. Contrary to a common misunderstanding, this creates no joint assets: the estates remain separate, each partner manages their own, and marriage alone makes no one liable for the other's debts. When the marriage ends, only the accrued gain is equalised – that is, the increase in assets achieved during the marriage. For many couples, this is a suitable arrangement, and anyone who agrees nothing has thereby already made a choice.

A 2.0 fee under KV 21100 (at least €120), calculated from the combined net assets of both spouses. The Bundesnotarkammer gives as an example €40,000 of assets and a fee of €290; at €100,000 it would be €546. As everywhere in the law of notary fees, the amount is not negotiable – § 17 BNotO requires the notary to charge the statutory fee.

Yes. § 1408 BGB allows the spouses to regulate their matrimonial property relations during the marriage. The common idea that a marriage contract has to be concluded before the wedding is not correct. In practice, concluding it later is often even better: the specific reason – setting up a business, an inheritance, a move abroad – is known by then, and there is none of the time pressure shortly before the wedding that makes a contract vulnerable to challenge.

Yes, without exception. § 1410 BGB requires the marriage contract to be concluded “in the simultaneous presence of both parties, to be recorded in writing by a notary”. Separate appointments, a signature sent by post, or representation are not possible. This is the same strictness as for a contract of inheritance, and for the same reason: both are meant to hear the explanation of its implications at the same time.

No, and this is often overlooked. In a dispute, courts examine marriage contracts to see whether they place a one-sided burden on one side. Particularly critical are: conclusion while one side is in a predicament – for example shortly before the wedding or during an existing pregnancy –, a significant imbalance of information or bargaining power, and provisions to the detriment of the one who steps back professionally for childcare. A practical consequence follows from this: a balanced contract is worth more than a maximally one-sided one, because it also holds up when it matters.

In most cases, the modified community of accrued gains. It keeps the statutory model but deliberately takes individual items out of the equalisation – typically a business interest or an inherited property. This achieves the actual protective purpose without scrapping the equalisation altogether. Full separation of property is the blunt approach and has a little-known drawback: on death, the favourable treatment of the equalisation of accrued gains is lost, which can be disadvantageous for inheritance tax.

When there is a specific reason. The most common ones: a business interest, where the equalisation of accrued gains could otherwise force the sale of shares; very unequal assets, for example because of an inherited property; a second marriage with children from an earlier relationship; and a foreign element, where the applicable law must first be clarified. Without such a reason, a marriage contract usually regulates things that would have been better left unregulated.

Yes, it can also regulate post-marital maintenance and the Versorgungsausgleich – and it is exactly there that courts scrutinise most strictly. The core area of the law on the consequences of divorce, in particular maintenance for childcare for joint children, cannot be excluded at will. Agreements that leave the parent providing care worse off without compensation often do not hold up. If you want to regulate this, it is worth getting separate legal advice for each side, in addition to the notarial recording.