Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Subtitle 2
Contractual property regime
Chapter 1
General provisions
Section 1408
Marriage contract, freedom of contract
(1) The spouses may provide for their matrimonial property arrangements by contract (marriage contract), and in particular even after entering into marriage terminate or alter the matrimonial property regime.
(2) If the spouses conclude agreements on the equalisation of pension rights in a marriage contract, sections 6 and 8 of the Equalisation of Pension Rights Act [Versorgungsausgleichsgesetz] are applicable in this respect.
Section 1409
Restriction of freedom of contract
The matrimonial property regime may not be determined by reference to law that is no longer valid or to foreign law.
Section 1410
Form
The marriage contract must be recorded by a notary, and both parties must be present.
Section 1411
Marriage contracts of persons with restricted capacity to contract or incapable of contracting
(1) A person whose capacity to contract is restricted may enter into a marriage contract only with the approval of his legal representative. This also applies to a person of full age placed under the care of a custodian to the extent that a reservation of consent has been ordered for this matter. Where the legal representative is a guardian, then in addition to the approval of the legal representative the approval of the family court is necessary if the equalisation of the accrued gains is excluded or restricted or if community of property is agreed or terminated; if the legal representative is a custodian, the approval of the custodianship court is necessary. The legal representative may not enter into a marriage contract for a spouse with restricted capacity to contract or a person of full age placed under care who is capable of contracting.
(2) For a spouse who is incapable of contracting, the legal representative enters into the contract; he may not agree on or terminate community of property. If the legal representative is a guardian, he may enter into the contract only with the approval of the family court; if the legal representative is a custodian, the approval of the custodianship court is necessary.
Section 1412
Effect in relation to third parties
(1) Where the spouses have excluded or altered the statutory matrimonial property regime, they may derive from this, in relation to a third party, objections to a legal transaction that was entered into between one of them and the third party only if the marriage contract has been entered in the marriage property register of the competent local court [Amtsgericht] or was known to the third party when the legal transaction was entered into; objections to a final and absolute judgment which has been pronounced between one of the spouses and the third party are admissible only if the marriage contract was registered or known to the third party at the time when the legal dispute was first pending at court.
(2) The same applies if the spouses terminate or alter by marriage contract a provision for the marriage property arrangements which is entered in the marriage property register.
Section 1413
Revocation of permission to manage assets
If a spouse permits his assets to be managed by the other spouse, then the right to revoke the permission at any time may be excluded or restricted only by marriage contract; however, revocation for a compelling reason remains admissible.
Chapter 2
Separation of property
Section 1414
Commencement of separation of property
If the spouses exclude the statutory property regime or terminate it, separation of property takes effect, unless the marriage contract leads to a different conclusion. The same applies if the equalisation of the accrued gains is excluded or community of property is terminated.
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