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Prenup invalid for being unjust

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Wife under pressure when concluding the agreement


A prenuptial agreement is a sensible means of protecting one’s assets. But the terms of the agreement must not put one of the partners at an excessive disadvantage, as this has the potential to render individual clauses, or even the agreement as a whole, null and void. Such was the outcome of a case adjudicated by Berlin’s court of appeal – the Kammergericht (KG) Berlin. In a ruling from August 28, 2023, the court held that a prenuptial agreement is contra bonos mores, and therefore invalid, if it entails the parties agreeing to a comprehensive reciprocal waiver that severely disadvantages one of the partners without providing for any form of compensation (case ref.: 16 UF 21/23).


A prenup may be a particularly good idea if there is a big difference in terms of the assets each partner brings to the marriage, or if one of the partners holds shares in a company. In either of these cases, asset protection ought to be a priority. There are, however, limits to the contractual freedom of the parties to a prenuptial agreement, cautions MTR Legal Rechtsanwälte. The firm’s family law experts note that an agreement whose terms unduly disadvantage one of the partners may be unlawful.


Prenup featuring extensive waiver


The case in question was concerned with a German man and his Belarusian wife. The couple had concluded a prenuptial agreement that provided for the separation of property and excluded any adjustment of pension rights. In the event of a divorce, maintenance was only to be paid for childcare. While it is true that the wife did indeed sign the agreement, she had been put under a lot of pressure in the months leading up to this, with the husband threatening to divorce her if she did not accept the agreement. This would have had serious consequences for the Belarussian national. She would have lost her right to reside in Germany and would have faced deportation.


The husband frequently found himself abroad due to assembly work and was accompanied by his wife. This meant that while the husband earned well, the wife was unable to earn an income of her own.


When the marriage finally broke down and the couple divorced, the wife was dealt a much greater financial blow than the husband from having agreed to the extensive waiver of pension entitlements in the prenuptial agreement. However, the competent family court, after scrutinizing the prenup, found the agreement to be unjust and ordered an adjustment of pension rights.


Waiver of pension rights adjustment without compensation


The husband’s appeal against this decision was ultimately dismissed by the KG Berlin. Noting the agreement’s failure to provide for compensation to offset the waiver of any adjustment to pension rights, the court ruled that the prenup was unjust and hence void.


In justifying its decision, the KG Berlin pointed to the clear economic imbalance during the marriage in favor of the husband, who earned well and paid social security contributions while his wife was only able to generate a small amount through side jobs. Due to regularly accompanying her husband on assembly assignments abroad, it was not possible for her to develop her own professional career. This was a single-breadwinner marriage, according to the court.


Husband exploited wife’s situation


The wife’s situation was made even more difficult by the fact that she had given up her life in Belarus and gotten married. Her residence permit in Germany was therefore initially dependent on the (continued) existence of the marriage. The husband was deemed to have taken advantage of this fact and pressured her into signing the agreement. This, too, rendered the situation unjust in the eyes of the KG Berlin.


The content of prenuptial agreements is subject to review. This is intended to prevent the supposedly weaker partner from being unreasonably disadvantaged. Care should therefore always be taken when concluding a prenup to ensure that it is not unjust.


The team at MTR Legal Rechtsanwälte advises on many aspects of family law, including prenuptial agreements. Get in contact with one of our legal experts today!

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