prenuptial agreement
noun · Ehevertrag
Ehevertrag is the right word, but a German prenuptial agreement is a different creature from the English one. It must be notarised to exist at all, § 1410 BGB, and once validly made it binds, § 1408 BGB, subject only to a content review that can strike a grossly one-sided bargain as sittenwidrig, § 138 BGB. The English prenup is not automatically binding and is only a factor the court weighs.
Which translation, when
Why
In England a prenuptial agreement is not binding, since Radmacher v Granatino the court gives it decisive weight where it is fair and freely made, but the s.25 discretion of the Matrimonial Causes Act 1973 remains and the court can depart from it. The German Ehevertrag starts from the opposite position. It is a formal contract, void unless recorded by a notary with both parties present, § 1410 BGB, and once validly concluded it binds, the spouses can alter or exclude the statutory property regime and the pension equalisation, § 1408 BGB, and settle future maintenance too, which rests on its own provision, § 1585c BGB. What tempers that bindingness is not a general discretion but a content review, the Wirksamkeitskontrolle developed by the Bundesverfassungsgericht and the Bundesgerichtshof, under which an agreement that one-sidedly shifts the whole burden onto one spouse can be void as sittenwidrig, § 138 BGB. So both systems police fairness, but the default differs, the English prenup persuades, the German Ehevertrag binds unless it fails the content check, and the German one does not exist without a notary. Translating prenuptial agreement as Ehevertrag while carrying the English non-binding assumption, or forgetting the German notarial form, misstates what the client has signed.
Typical mistakes
- A German Ehevertrag is void without notarisation, § 1410 BGB, so a privately signed prenup that would still weigh in England is a nullity in Germany, not a weaker version.
- A validly made Ehevertrag binds, § 1408 BGB, it is not merely a factor for the court, so advising that a German judge will reweigh it as in England is wrong.
- Binding is not unassailable, a grossly one-sided Ehevertrag can be struck as sittenwidrig, § 138 BGB, so promising a client that any notarised agreement will hold overstates it.
What matters
An international couple planning a prenup with assets in both countries: rendering it as an Ehevertrag hides the notarial form of § 1410 BGB, without which nothing exists, and the bindingness of § 1408 BGB, so a document drafted to English assumptions may be either void for form or more binding than the parties expected.
What the machine misses
Prenuptial agreement comes back as Ehevertrag, which is the right term, but the machine cannot flag that the German instrument is void without a notary, § 1410 BGB, and binds once made, § 1408 BGB, where the English prenup is neither. The reader carries the English assumption that the agreement is only persuasive, and may draft or sign an Ehevertrag that is either a nullity for want of form or harder to escape than a prenup would ever be.
Examples
| to enter into a prenuptial agreement | einen Ehevertrag schließen |
| a notarised prenuptial agreement | ein notariell beurkundeter Ehevertrag |
| the agreement is void as unconscionable | der Ehevertrag ist sittenwidrig |
More notes on these sections
void nichtig