Nuptial agreements in "entrepreneurial marriages” - Requirements for the matrimonial regime of separation of property to be valid
In “entrepreneurial marriages” nuptial agreements constitute a key instrument for the protection of business interests while concurrently safeguarding the solidarity of the marriage community. The particular focus here is on the exclusion of the statutory regime of the equalisation of accrued gains by choosing the regime of separation of property. Yet, what is the extent of the freedom of contract? And when is such an exclusion unconscionable? In a recent decision, the Federal Court of Justice (Bundesgerichtshof, BGH) specified the criteria for checking the validity of nuptial agreements.
Background - The matrimonial property regime in an "entrepreneurial marriage”
In marriages where at least one spouse pursues an entrepreneurial activity or disposes of considerable business assets, a question that routinely arises is how can the corporate wealth be protected in the event of a divorce (possibly also when claiming a compulsory portion of an inheritance). When a marriage ends, the statutory matrimonial property regime of the community of accrued gains (Section 1363 ff. of the German Civil Code) provides that a purely monetary compensation for the assets acquired during the marriage will take place. This can then be especially problematic if the accrued gains are primarily due to the appreciation in the value of a business (but also of real estate assets) that belong to just one spouse.
The assertion of such a monetary equalisation claim might result in considerable liquidity problems if the spouse who is liable to pay the compensation is not able to satisfy the claim from their disposable assets. This situation can be addressed by choosing a different statutory property regime or by modifying one, thus, for example, by
- choosing the regime of separation of property, so that no equalisation will take place;
- modifying the regime of the community of accrued gains, e.g., by excluding the equalisation of accrued gains in the event of a divorce, or by withdrawing the business from the assets for which compensation would be required;
- a community property arrangement with a separate arrangement covering business assets.
However, nuptial agreements are subject to a judicial content inspection according to which the agreement is reviewed, in particular, in respect of possible unconscionability. This can arise not solely from the content, but from an overall view of the content and the materialisation of the nuptial agreement. The determining criterion is, in particular, evident one-sided burden-sharing and, simultaneously, the structural inferiority of one party. In such a case it would be necessary to compensate these disadvantages in order not to give rise to any unconscionability and to be able to agree a valid change to the statutory property regime.
Recent case on the issue of the unconscionability of the separation of property
In its decision of 28.5.2025 (case reference: XII ZB 395/24), the BGH recently ruled on the issue of weighing up between the equalisation of accrued gains and the separation of property; the case was based on the following family situation.
- A nuptial agreement was concluded in 2010 following the birth of the first daughter; three more children followed during the marriage. During the conclusion of the agreement, the wife received legal advice from her father.
- The wife worked as a business manager from 2007 up to the birth of the third child (gross monthly income: €4,200).
- The husband worked as a shareholder/managing director in his family's different companies; the company agreements of these businesses obliged all shareholders to conclude agreements with their spouses on the separation of property.
The separation of property and other modifications were agreed in a nuptial contract:
- modified post-marital maintenance with fixed monthly amounts (at least €3,300, after four years of marriage €5,000)
- no obligation for the mother to secure income from employment until the youngest child is 7 years old
- reciprocal waiving of inheritance and compulsory portions
- no arrangements concerning pension rights adjustment.
In the course of the divorce that took place in 2021, the wife filed a petition for the husband’s obligation to effect compensation to be determined.
The ruling - no unconscionability - permissible separation of property
The BGH dismissed the petition for the equalisation of accrued gains. First of all, the BGH stated that the separation of property is in principle allowed, also in "entrepreneurial marriages”. This is does not belong to the core area of the legislation regarding the consequences of divorce, which is specially protected against modifications. The Karlsruhe-based judges further clarified that one-sided burden sharing alone is not sufficient for presuming unconscionability. Additional circumstances have to be present, such as:
- a situation of duress,
- an economic dependency, or
- intellectual inferiority.
In the view of the BGH, it is not sufficient if, during the conclusion of the agreement, it can already be foreseen that one of the spouses is going to withdraw, completely or partially, from professional life and, therefore, a predictable uncompensated pension gap will remain for this spouse. By contrast, the spouse who goes out to work will generally have an overriding legitimate interest in keeping back the assets of their stand-alone business enterprise via an agreement on the separation of property to avoid potentially existence-threatening access by their spouse in the event of a divorce and, thus, to maintain a livelihood not only for themself but also for the family.
Nuptial agreement with business protection - practical recommendations
If the aim is to select a nuptial agreement specifically as an instrument to protect the economic basis of the existence of a “business”, then certain legal requirements need to be taken into account in order to ensure the validity of the nuptial agreement. In particular, the following would be advisable:
- protect the core area of the legislation regarding the consequences of divorce by not fully excluding the key safeguarding mechanisms, such as, childcare maintenance;
- possible compensation for requirements that are waived, for example, through adequate financial recompense;
- independent legal advice for both spouses so that it can be ensured that both parties understand the scope of the agreements and are each able to make an informed decision.
