3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
By concluding a marriage contract, the spouses may not only opt for one of the alternative contractual matrimonial property regimes but may also modify the individual provisions of the respective matrimonial property regime (§ 1408 par. 1 BGB). Furthermore, the spouses may choose the applicable law in their marriage contract (see point 1.2).
By derogation from the default regime of the community of accrued gains, the spouses may opt for the separation of assets (§ 1414 BGB), full community of property (§ 1415 et seq. BGB) and the Franco-German matrimonial property regime of an optional community of accrued gains.
By choosing the separation of assets, they will revoke the statutory matrimonial property regime. Under this contractual form of matrimonial property regime, the accrued gains will not be equalized.
Under the regime of full community of property (which is rare in practice), the spouses’ assets become their joint property (§ 1416 BGB). However, there are specific limitations regarding their own assets and reserved assets. Assets that cannot be transferred by a legal act are considered a spouse’s own assets: (§ 1417 par. 2 BGB [German Civil Code]). For example, a spouse’s own assets include debts that are non-transferable and are immune from seizure, salary-related debts and subsistence expenses immune from seizure or the share of a personally liable shareholder in a general or limited partnership. Reserved assets include, for example, assets declared in a marriage contract as reserved to one of the spouses, acquired as a result of a spouse’s death or which are given to him or her by a third party if the deceased specified in their will or the third party in their gift that the assets so acquired were to be deemed reserved assets.
The community property belongs jointly to the spouses (§ 1419 BGB). If the marriage contract does not contain any provisions in relation to this, the spouses shall manage the community property jointly.
The Franco-German matrimonial property regime of an optional community of accrued gains may also be chosen by the spouses, regardless of whether one of the spouses is a French national or has his or her customary place of residence in France. This optional matrimonial property regime corresponds mainly to the separation of assets but also provides for some mandatory compensation measures and restrictions to the particular rules on freely disposing of assets, in particular the family home.
Freedom of contract is limited by the principle of good faith. Thus, a marriage contract need not only be in compliance with the basic rules of public policy, but must also meet more stringent requirements, which exclude unilateral discrimination by one of the spouses at the time of conclusion of the contract and during its entire term.
3.2. What are the formal requirements and who should I contact?
Pursuant to § 1410 BGB, the marriage contract must be recorded by a civil law notary in the presence of both parties.
3.3. When may the contract be concluded and when does it come into effect?
The spouses may conclude a marriage contract at any time during a preexisting marriage or prior to the celebration of a marriage. In the latter case, the contract will only enter into effect once the marriage is concluded (§ 1408 BGB).
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses may amend the existing agreements at any time in accordance with the applicable formal requirements.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
Under German law, a marriage contract established after the celebration of the marriage becomes effective pursuant to § 1408 para. 1 BGB upon its conclusion (date of notarial authentication) or, if it was established under a suspensive or regulatory condition pursuant to § 158 BGB, at a date differing from the date agreed on after its conclusion. If the separation of property was previously established, it can be agreed that, in the event of an equalisation of accrued gains, a date in the past shall be relevant for the determination of the initial assets. However, this modification does not apply to inheritance tax law.
