Marriage Contract and Divorce Settlement Agreement: Contents, Process and Costs
Whether before the wedding, during the marriage or on the occasion of a separation: a notarial marriage contract (prenuptial or postnuptial agreement) or divorce settlement agreement creates clear and legally secure arrangements. This page gives you an orientation of the topics typically covered, how the path to the deed works, and how the notary fees are calculated – so that you can come to the advisory meeting well prepared.
Good to know: Marriage contracts and divorce settlement agreements are not off-the-shelf documents. The individual provisions interact with each other, and what is appropriate in your case usually only becomes clear in the joint advisory meeting – quite often the final result looks different from the original idea. This page therefore does not replace advice; it helps you understand the topics and terminology.
The process from enquiry to notarisation
The joint advisory meeting is at the centre of the process – this is where the substantive concept of your contract is developed. This is how it typically works:
The path to the deed at a glance
- Enquiry and basic data You send us the basic data via the marriage contract data sheet or the divorce settlement data sheet: the parties, your family situation and the approximate financial circumstances. You do not yet need to decide what the contract should contain – that is what the advisory meeting is for.
- Joint advisory meeting The centrepiece: together with both parties we clarify your goals and situation, explain the options and how they interact, and develop a coherent overall concept. On this basis we can also give you an initial assessment of the expected costs.
- Draft for review We prepare the draft contract and send it to you well before the notarisation appointment. Change requests and questions are clarified in advance.
- Notarisation Notarisation appointment at our office: the notary reads out the deed, explains its content and answers any remaining questions. You then receive official copies of the deed for your records.
The typical building blocks
The following building blocks are the “vocabulary” of marital agreements. Not all of them need to be regulated – which ones make sense for you, and how they should be designed, is worked out together in the advisory meeting.
Matrimonial property regime
Without a marriage contract, spouses live under the statutory regime of the community of accrued gains (Zugewinngemeinschaft). Contrary to a widespread misconception, marriage does not create joint property under this regime: each spouse keeps their own property, and assets acquired during the marriage belong solely to the spouse who acquires them – to both only if they acquire them together. Nor is one spouse liable for the other’s debts merely by virtue of the marriage – liability can arise from separately assumed obligations, such as co-signing a loan or giving a guarantee, but not from the marriage as such. Only when the marriage ends is the increase in assets achieved during the marriage equalised (equalisation of accrued gains).
By contract, separation of property (Gütertrennung) can be agreed instead – or, particularly common in practice, a modified community of accrued gains, in which the statutory regime remains in place in principle and is adjusted in a targeted way. The adjustment can concern individual assets – for example a business, a professional practice or a property excluded from the equalisation of gains – but the equalisation of gains can also be excluded completely for the event of divorce. This arrangement is in fact particularly common: if the marriage ends through the death of one spouse, the advantages of the community of accrued gains – including tax advantages – are preserved, while in the event of divorce no equalisation of gains takes place, just as under separation of property. Which variant fits depends heavily on the asset and income situation of both spouses – tax and inheritance law consequences also play a role.
Post-marital maintenance
In the event of divorce, the law provides for maintenance claims under certain conditions, for example due to childcare, age or illness. These claims can be specified by contract, limited in amount or duration or – within limits – waived. Especially for maintenance, complete waivers do not always withstand judicial review; a balanced arrangement that fits the actual life situation is essential here.
Pension rights adjustment
Upon divorce, the (statutory) pension entitlements acquired during the marriage are in principle divided equally (pension rights adjustment, Versorgungsausgleich). This adjustment can be modified or excluded by contract – for example where both spouses provide for their old age independently, or where compensation is agreed in another form. Who benefits from an exclusion is a question of the individual case and is not always obvious: a spouse who earns a great deal but does not pay into a statutory pension scheme may, under the pension rights adjustment, receive entitlements from the other spouse – even if that spouse earns considerably less but, as an employee, is required to pay into the statutory pension system.
Further building blocks
Depending on the situation, further provisions come into consideration: the allocation of individual assets (such as real estate or shareholdings), waivers of compulsory shares or inheritance rights, a choice of law for the applicable law in marriages with an international dimension, and provisions for spouses who run a business. In international cases – foreign citizenship, assets or residence abroad – we are happy to advise and notarise in English or Dutch; see our page on international matters.
The divorce settlement agreement
If a separation or divorce is imminent, the spouses can settle its consequences amicably in a notarial divorce settlement agreement instead of litigating them in court. Typical contents are:
- Equalisation of accrued gains – quantification, settlement or waiver, frequently combined with the transfer of real estate or other assets,
- maintenance – separation maintenance (within very narrow limits – waivers for the future are not permitted) and post-marital maintenance, in amount and duration,
- pension rights adjustment – exclusion or modification,
- matrimonial home and household effects – who stays, who takes what,
- for jointly owned real estate: transfer or sale, including arrangements for ongoing loans.
A well-prepared divorce settlement agreement usually makes the court divorce proceedings considerably faster and cheaper, because the consequential matters do not have to be litigated. It can be concluded before, during or after the divorce proceedings – ideally as early as possible.
Limits of contractual freedom
Marriage contracts are subject to judicial review of content and exercise: provisions that unilaterally and unreasonably disadvantage one spouse – particularly in the core area of maintenance and pension rights – may be wholly or partially invalid in the event of divorce. This applies above all where there was a clear imbalance in bargaining power, for example if the contract was concluded under time pressure shortly before the wedding or during a pregnancy.
As a notary, I am required by law to be neutral: I advise both spouses impartially and work towards a balanced arrangement that will hold up if put to the test. This is not a formality but your protection – a contract that does not withstand judicial review ultimately benefits no one. This is another reason why the path to a good marriage contract leads through the advisory meeting and not through a template form.
Frequently asked questions
Can you tell us in advance what our contract will cost?
A blanket figure in advance would not be serious, because the statutory fees depend on the transaction value – which is determined by your financial circumstances and the specific matters to be regulated (see the cost orientation). However, as soon as we have your basic data, we will be happy to quantify the expected costs – at the latest in the advisory meeting.
Do we already need to know what the contract should say?
No – that is precisely the purpose of the advisory meeting. It is sufficient if you can describe your situation and your goals (“we want to protect the business”, “we want to settle the consequences of our divorce amicably”). We develop the appropriate legal arrangement together; the result often looks different from the original idea – and is then more robust.
Does each of us need our own lawyer?
No. The notary advises both spouses neutrally and impartially and works towards a balanced arrangement. Of course, each spouse is free to seek additional legal advice. Where interests strongly diverge – for example in contentious separation situations – this is often quite sensible; however, there is no obligation to do so.
Can we amend the contract later?
Yes. A marriage contract can be amended or revoked at any time by a new notarial agreement. In any event, it is advisable to have existing contracts reviewed when your life situation changes significantly – children, starting a business, major shifts in assets.
What does the advisory meeting cost?
The advice is covered by the notarisation fee, so in principle no separate costs arise. If the notarisation procedure is terminated prematurely after individual advice has been given, a consultation fee may in principle be charged – but this is not yet the case for the initial contact and the discussion of the possible way forward. So please do not hesitate to get in touch.
The next step: send us your basic data – we will then contact you to arrange the advisory meeting.
