Consideration of prenuptial agreements for cost sharing during divorce: Legal situation and current developments
The allocation of costs in a divorce proceeding regularly represents a core point of the financial dispute between spouses. Not infrequently, parties seeking divorce agree in advance – for example, accompanying a notarized divorce settlement agreement or during the separation process – on an individual cost bearing that deviates from the legal regulation of § 243 FamFG or the relevant procedural regulations. The recognition of such private autonomous agreements by the courts is of considerable practical importance.
A recent decision by the Higher Regional Court of Bremen (Case No.: 4 WF 54/21, published on 01.10.2021; available at urteile.news) illustrates the extent to which court cost decisions in an amicable divorce must be influenced by the parties’ agreement and what legal parameters are decisive in this regard.
Statutory cost framework and party-autonomous deviations
Cost distribution in the divorce association
According to the legal starting point, under § 150 Para. 1 FamFG, each spouse generally bears the costs of the proceedings, including their own and proportional court fees, unless special circumstances – such as gross negligence of a party – justify a different cost allocation. The court decision thus follows the principle of sharing.
Admissibility of private cost agreements
Freedom of contract allows the parties to agree on different cost allocations within the civil law limits (particularly also under guardianship court). Such agreements regularly serve to financially relieve an economically disadvantaged spouse, promote a swift settlement, or implement balanced compensation solutions.
Impact of private cost agreements on the court decision
Scope of binding effect
Judicial consideration of private agreements is not mandatory, but they have a binding effect if they were effectively and not immorally agreed upon. The court is obliged, in case of consensual agreement on cost allocation, to deviate from the statutory default allocation and to use the parties’ agreement as the basis for the cost decision – this is reflected in the decision of the Higher Regional Court of Bremen (4 WF 54/21).
Requirements for transparency and verifiability
In view of the court’s binding effect, a clear, content-determinable and verifiable intention of the parties is required. Documentation – such as a written agreement signed by both parties – creates the necessary evidentiary situation and enables the court to appreciate and implement the parties’ decision. In the absence of such evidence, the statutory cost regulation usually remains in effect.
Particularities in ongoing proceedings and material legal allocation
Relationship to procedural and material cost regulations
The parties’ agreement on cost allocation acts exclusively in the relationship between the parties (material cost regulation). It affects the allocation of costs but not the procedural obligation to reimburse costs to third parties, such as the court or – in exceptional cases – the social welfare agency in case of legal aid.
Impact on cost determination
In the context of the cost determination procedure, a distinction must be made between internal cost bearing (parties’ agreement) and the court-determined cost allocation. The internal agreement cannot become the subject of the cost determination procedure against the will of the parties, but it must be considered in the payout and internal processing.
Legal assessment and classification of the current decision
The case decided by the Higher Regional Court of Bremen emphasizes the relevance of private agreements in the divorce process and their influence on the application of the law. The decision confirms that courts must generally respect party autonomy within their discretion, provided there are no legal concerns (e.g., immorality, unreasonable disadvantage, violation of mandatory norms). However, procedural implementation requires clear verifiability and a distinct intent of the parties.
The current jurisprudence thus grants increased importance to contractual cost agreements between spouses in the divorce context, opening up precise design and planning possibilities that may involve not only economic but also strategic considerations in the separation process.
Note on ongoing proceedings
If proceedings have not yet been conclusively decided and cost agreements between spouses are up for judicial review, the presumption of innocence applies in full, and the binding nature of court decisions remains reserved. Source: urteile.news/OLG-Bremen_4-WF-5421.
Clients with further legal questions regarding the design and effectiveness of marital cost agreements in the course of separation or divorce, and their protection within judicial proceedings, can obtain further information under legal advice on divorce.
