Love knows no borders, which is why many couples decide to marry abroad. But what does this mean for the prenuptial agreement? What legal regulations apply if the residence remains in Germany or is moved abroad? In this article, we will give you an overview of what you should be aware of.

Marriage abroad with residence in Germany: No change in the legal situation

Anyone who marries abroad but continues to live in Germany is generally subject to German family law. This means that

• A marriage contract drawn up in Germany remains valid.
• Without a marriage contract, the statutory matrimonial property regime of community of gains under German law (§ 1363 BGB) automatically applies.
• Divorce and alimony regulations are governed by German law as long as both partners have their main residence in Germany. 

Despite marrying abroad, it is advisable to draw up the marriage contract in accordance with German law and have it notarised in Germany in order to avoid later ambiguities or legal problems.

Residence abroad: Which law applies?

The situation is different if the couple moves their residence abroad after the marriage. In this case, different legal regulations may apply.

For marriages entered into after January 29, 2019, the principle applies that the law of the state in which the “first common habitual residence of the spouses after the marriage” is located (Art. 26 para. 1 lit. a) Brussels Ia Regulation) applies.

To illustrate this, consider the following example: If a German couple moves to Thailand for a few years immediately after the marriage or also marries in Thailand and initially lives there together, Thai law is applicable in the event of divorce even if the spouses move back to Germany before the divorce.

In countries where the Brussels Ia Regulation does not apply, international private law determines the applicable law, so that in individual cases it may happen that foreign courts will in turn apply German law.

A German marriage contract is not automatically recognised in every country. And even if the marriage contract is indeed recognised abroad, this does not necessarily mean that the entire content is then legally effective abroad.

In most cases, the problem can be avoided by using a clause stating the choice of law in accordance with Art. 22 Para. 1 of the Brussels Ia Regulation or Art. 5 of the Rome III Regulation. The couple moving to Thailand in the example above can, for example, agree in the marriage contract that German law will apply to property disputes.

In individual cases, it may be advisable to have a marriage contract notarised again abroad. 

Anyone getting married abroad or moving there should definitely seek legal advice in good time. This will ensure that the prenuptial agreement is valid both in Germany and abroad and has the desired legal consequences. Every case is different and the legal situation depends on when and where the marriage was entered into and where the spouses are moving to. Since you can face enormous financial consequences, you should not rely on a Google search.

Would you like to find out more about drafting an international prenuptial agreement? Our law firm will be happy to support you with expert advice and personalised solutions. 

You are moving abroad and are unsure to what extent your prenuptial agreement is valid abroad? We would be happy to advise you on your existing prenuptial agreement and, if necessary, draft a new one to protect your interests when moving abroad.