Divorce Settlement Agreement Before Emigrating: Form, Choice of Law, Enforcement

Published on 08.10.2026

Divorce Settlement Before Emigrating

Anyone who separates and at the same time plans to move abroad should settle the consequences of the divorce while both spouses still live in Germany. A divorce settlement agreement (Scheidungsfolgenvereinbarung) concluded with an emigration in mind has to achieve more than a purely domestic contract: it must comply with German formal requirements, determine the applicable law for divorce, matrimonial property and maintenance, designate a place of jurisdiction where this is permissible, and be capable of recognition and, if necessary, enforcement in the later country of residence. This article shows which rules apply under German and European law (legal position: September 2026), where the limits of freedom of contract lie and which mistakes frequently occur in practice.

Why the Timing Before the Move Is Decisive

European conflict-of-laws rules are predominantly linked to habitual residence, i.e. to the actual centre of a person’s life. If one spouse moves this centre abroad, three things shift at the same time:

• the applicable law: In the absence of a choice of law, divorce law under Art. 8 of the Rome III Regulation is primarily determined by the spouses’ common habitual residence, and maintenance law under Art. 3 of the 2007 Hague Maintenance Protocol (HUP) by the residence of the maintenance creditor, namely by the new residence from the time of a move;
• the competent courts: Under Art. 3 of the Brussels IIb Regulation, several states may have jurisdiction for the divorce at the same time after a move;
• the formal requirements: The form a choice of law requires depends on where the spouses live when the agreement is concluded.

The distinction between jurisdiction and applicable law and the connecting-factor ladder of Art. 8 Rome III are explained in the article Divorce with a foreign residence: which court has jurisdiction and which law applies?. This article deals with the contractual side: what can be determined bindingly before the move?

What a Divorce Settlement Agreement Can Cover

A divorce settlement agreement is concluded in view of a specific separation, whereas a marital agreement (Ehevertrag) is often concluded as a precaution while the marriage is intact. The rules on form and content are largely the same. Not every matter is equally at the spouses’ disposal:

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Formal Requirements under German Law

Equalisation of Accrued Gains

An agreement on the equalisation of accrued gains that is made, in the event of divorce, during proceedings aimed at dissolving the marriage requires notarial recording under Section 1378 (3) sentence 2 of the Civil Code (Bürgerliches Gesetzbuch, BGB). If the matrimonial property regime itself is changed, for example by agreeing separation of property (Gütertrennung), this is a marital agreement which, under Section 1410 BGB, must be concluded before a notary with both parties present at the same time. In the case of an impending move, it should therefore be clarified at an early stage when both spouses (or their representatives) can appear together before the notary. How accrued gains are calculated in an international marriage and which matrimonial property law applies is covered in the article Equalisation of accrued gains in an international marriage.

Pension Rights Adjustment

An agreement on the pension rights adjustment made before the decision on the equalisation of values becomes final requires notarial recording under Section 7 (1) of the Pension Rights Adjustment Act (Versorgungsausgleichsgesetz, VersAusglG); a settlement recorded by the court replaces it (Section 7 (2) VersAusglG, Section 127a BGB). Within a marital agreement, the form under Section 1410 BGB applies (Section 7 (3) VersAusglG). Under Section 8 VersAusglG, the agreement must withstand a review of its content and of the exercise of rights under it, and entitlements can only be transferred or created if the relevant rules permit this and the pension providers consent.

Post-Marital Maintenance and Separation Maintenance

Under Section 1585c BGB, spouses may make agreements on maintenance for the period after the divorce; before the divorce becomes final, notarial recording is required, or alternatively recording in proceedings in matrimonial matters. For separation maintenance, Section 1614 BGB applies via Section 1361 (4) sentence 4 and Section 1360a (3) BGB: future separation maintenance cannot be validly waived.

Language of the Notarial Recording

Where spouses have different native languages, one point is often overlooked: if a party does not have sufficient command of the language of the deed, the notary is to record this, and the deed must be translated, and on request also in writing (Section 16 of the Notarisation Act, Beurkundungsgesetz, BeurkG). Skipping this step later supplies an argument against validity or for a position of inferiority when the agreement was concluded.

Review of Content: Limits of Freedom of Contract

Form alone does not make an agreement unassailable. In its judgment of 11 February 2004 (XII ZR 265/02), the Federal Court of Justice (Bundesgerichtshof, BGH) developed the two-stage review that remains authoritative to this day:

• Validity review (Wirksamkeitskontrolle): Based on an overall assessment of the circumstances at the time the agreement was concluded, it is examined whether the agreement leads to an obviously one-sided distribution of burdens that is contrary to public policy (Section 138 BGB).
• Exercise review (Ausübungskontrolle): If the agreement is valid, it is examined on divorce whether relying on individual provisions is contrary to good faith in view of circumstances that have since changed (Section 242 BGB). The consequence is, as a rule, an adjustment.

Under the core area doctrine (Kernbereichslehre), maintenance for the care of children and maintenance on grounds of age and illness enjoy the strongest protection, with the pension rights adjustment close behind; the equalisation of accrued gains is the most open to contractual arrangement. For emigrants, the exercise review is particularly relevant: the move may change life plans to such an extent that a one-sided waiver of maintenance is later corrected, for example if one spouse cares for the couple’s children abroad and finds no opportunity to work. A carefully drafted agreement therefore records the underlying circumstances (income, assets, planned employment, residence plans) in a preamble.

Choice of Law: Four Areas of Law, Each with Its Own Rules

A widespread misconception is that a single clause stating “German law applies” covers all consequences of divorce. In fact, divorce, matrimonial property and maintenance each have their own options for choice of law and their own formal requirements, and the pension rights adjustment depends on the law applicable to the divorce.

Law Applicable to Divorce: Art. 5 Rome III and Art. 46e EGBGB

Under Art. 5 Rome III, the spouses can choose: the law of their common habitual residence, of their last common habitual residence (if one of them still lives there), the law of one of their nationalities or the law of the forum seised. The choice is in principle possible until the court is seised. Rome III applies in 17 EU member states, including Germany, and German courts also apply it if the law designated is that of a third country.

Art. 7 (1) Rome III requires at least written form, dated and signed by both spouses. Additional national formal requirements apply if both live in the same participating state (para. 2), if they live in different participating states, in which case the form of one of them suffices (para. 3), or if only one of them lives in a participating state (para. 4). In Art. 46e (1) of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche, EGBGB), Germany prescribes notarial recording. For emigration planning, this means: if one spouse already lives in a third country and the other still lives in Germany, the requirement of notarial recording remains in place because of Art. 7 (4) Rome III. Under Art. 46e (2) EGBGB, the choice of law is still possible until the close of the oral hearing at first instance, including by way of a settlement recorded by the court.

Law Applicable to Matrimonial Property: Art. 22 of the EU Matrimonial Property Regulation

The EU Matrimonial Property Regulation (Regulation (EU) 2016/1103, EuGüVO) permits the choice of the law of the habitual residence of one or both spouses or the law of a nationality (Art. 22 (1)). A change during the marriage in principle only has effect for the future (Art. 22 (2)). Art. 23 EuGüVO governs form in a similar way to Rome III: the provision only lays down a minimum form (written form, dated and signed by both spouses) and leaves additional formal requirements of the state of residence for marital agreements unaffected. For spouses habitually resident in Germany, the form under Section 1410 BGB is therefore added as a German additional form, i.e. the choice of law must be notarially recorded (see, for example, NK-BGB/Sieghörtner on Art. 23 EuGüVO). How such a choice of law can be worded in a marital agreement is shown in the article The matrimonial property clause in an international marital agreement. Under Art. 69 (3) EuGüVO, the choice-of-law rules apply to marriages concluded on or after 29 January 2019 or to choices of law made on or after that date, and only in the participating member states.

Law Applicable to Maintenance: Art. 8 HUP

The move is particularly delicate with regard to maintenance: under Art. 3 HUP, the law applicable to maintenance changes with the habitual residence of the maintenance creditor. Between spouses, a party may object under Art. 5 HUP that the marriage has a closer connection with another state.

Art. 8 (1) HUP permits the choice of the law of a nationality, of a habitual residence, of the law chosen or applied to matrimonial property or of the law chosen or applied to the divorce. The agreement must be in writing or recorded on a data medium and signed by both parties (para. 2). Important for drafting:

• Whether the maintenance creditor can waive maintenance is determined under Art. 8 (4) HUP by the law of their habitual residence at the time of the choice of law. Anyone who wants the waiver to be assessed under German law should conclude the agreement before the maintenance creditor moves away.
• Under Art. 8 (5) HUP, the chosen law is not applied if it would lead to manifestly unfair or unreasonable consequences, unless both parties were fully informed and aware of the consequences at the time of the choice. A documented explanation in the deed is therefore more than a formality.
• For children under 18 years of age, a choice of law is excluded (Art. 8 (3) HUP).

Pension Rights Adjustment: Follows the Law Applicable to Divorce

Under Art. 17 (4) sentence 1 EGBGB, the pension rights adjustment is subject to the law applicable to the divorce under Rome III and is only carried out if German law applies accordingly and the law of a state of which one of the spouses is a national recognises it. Otherwise, under sentence 2, it is to be carried out on application if one spouse acquired an entitlement with a German pension provider during the marriage and this is not inequitable. The choice of divorce law therefore has a direct effect on retirement provision. Under Section 19 (2) no. 4 VersAusglG, entitlements with foreign pension providers are not ripe for equalisation at the time of the divorce and are reserved for equalisation after the divorce (Sections 20 to 26 VersAusglG). What the move means for one’s own pension entitlements is described in the article German pension insurance when emigrating.

Jurisdiction: What Can Be Agreed

For the divorce itself, there is no agreement on jurisdiction; jurisdiction follows exhaustively from Art. 3 Brussels IIb (common or last common residence, residence of the respondent, residence of the applicant for one year or for six months if they are a national of that state, common nationality). These grounds of jurisdiction rank equally. If two Germans live abroad, Schöneberg Local Court (Amtsgericht Schöneberg) has jurisdiction in Germany under Section 122 no. 7 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG). Where the distance is great, the personal hearing can be conducted by a requested judge under Section 128 (3) FamFG.

For ancillary matters (Folgesachen), by contrast, an agreement is possible:

• Maintenance: Under Art. 4 of the EU Maintenance Regulation (EuUntVO), the courts of a member state in which a party lives or of which a party is a national can be chosen; for spousal maintenance, also the court dealing with the matrimonial matter or the courts of the last common habitual residence if this lasted for at least one year. Written form is required. For the maintenance of children under 18 years of age, such a choice is excluded.
• Matrimonial property: Art. 7 EuGüVO permits the choice of the courts of the state whose law applies under Art. 22 or Art. 26 (1) (a) or (b), or of the state in which the marriage was concluded.
• Parental responsibility: Art. 10 Brussels IIb permits a choice of court under narrow conditions, measured against the best interests of the child.

Children: Maintenance, Custody and Contact

With regard to child maintenance, the parents can, for example, agree an indemnity between themselves; under Section 1614 BGB, the child itself cannot waive maintenance for the future and is not bound by such an agreement. If the parent liable for maintenance emigrates, the child should obtain an enforceable title, for example a deed issued by the youth welfare office (Jugendamtsurkunde) or a notarial deed with submission to enforcement. How maintenance is enforced across borders is explained in the article Enforcing maintenance claims abroad.

Custody and contact are not freely at the parties’ disposal. Parents can make proposals, for example on the transfer of custody under Section 1671 BGB or on contact times, holidays and travel costs. An arrangement on contact becomes binding as a court-approved settlement under Section 156 (2) FamFG if it is not contrary to the child’s best interests. If a parent wants to emigrate with the child, they need the consent of the other person with custody or a court decision; otherwise, return proceedings under the Hague Child Abduction Convention (HKÜ) may follow. Details are set out in the article Child custody and relocation abroad.

Enforceability and Recognition Abroad

An agreement is of little use if it cannot be enforced in the debtor’s country of residence. For payment claims, a submission to immediate enforcement (Unterwerfung unter die sofortige Zwangsvollstreckung) should therefore be included in the deed. Under Section 794 (1) no. 5 of the Code of Civil Procedure (Zivilprozessordnung, ZPO), the notarial deed is then an enforceable title if the claim is capable of being settled and is precisely specified.

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Within the EU, the regulations largely dispense with legalisation (for example Art. 61 EuGüVO); for third countries, an apostille or legalisation is required depending on the destination country. Conversely, a divorce pronounced abroad does not automatically take effect in Germany, and its recognition only covers the divorce decree itself, not maintenance, pension rights adjustment or the division of assets. The enforcement of German titles abroad is dealt with in the article Enforcement of German judgments abroad (in German).

The Law of the Destination Country

From a German perspective, an agreement may be valid while a court in the destination country assesses it differently under its own conflict-of-laws rules, for example because that state applies neither Rome III nor the EuGüVO. Whether the agreement will be respected there and which additional form, registration or translation is required should be examined by a lawyer or notary in the destination country before signing.

Illustrative Example

Example (entirely fictitious): The German nationals Mira and Bastian live apart in Cologne. Bastian wants to move permanently to a country outside the EU in six months’ time; Mira is staying in Germany with their eight-year-old daughter. Both want to settle the equalisation of accrued gains and the pension rights adjustment with a lump sum and agree on time-limited maintenance for childcare.

If they conclude the agreement before Bastian moves, the choice of German divorce law requires notarial form (Art. 7 (2) Rome III, Art. 46e EGBGB), as do the provisions on accrued gains, pension rights adjustment and maintenance. Whether Mira can waive further maintenance is assessed under German law because she lives in Germany at the time of the choice of law (Art. 8 (4) HUP). An agreement on jurisdiction under Art. 4 EuUntVO can designate German courts for spousal maintenance, but not for the daughter’s maintenance. Bastian submits to immediate enforcement with regard to child and spousal maintenance; how this title is enforced in the destination country is clarified by a local adviser. If both wait until after the move, the requirement of notarial recording remains because of Art. 7 (4) Rome III; only arranging appointments becomes more difficult.

Common Mistakes in Practice

1. One choice-of-law clause for everything: Divorce, matrimonial property and maintenance have separate choice-of-law rules.
2. Private written agreement before the move: As long as German formal law applies, simple signatures are not sufficient.
3. Waiver of separation or child maintenance: Invalid for the future.
4. No submission to enforcement: Without a title, the maintenance creditor must first conduct court proceedings before being able to enforce abroad.
5. No documentation of the circumstances: It will be missing later in the exercise review.
6. Pension rights adjustment overlooked: Choosing a foreign divorce law changes it under Art. 17 (4) EGBGB.

Anyone who wants to reorganise assets at the same time as concluding the agreement should ensure transparency; the limits of such arrangements are shown in the article Protecting assets against divorce through a foreign structure.

Conclusion

A divorce settlement agreement in view of a planned emigration should be concluded while both spouses still live in Germany. It combines the formal requirements of Section 1378 (3), Section 1410, Section 1585c BGB and Section 7 VersAusglG with separate choices of law for divorce, matrimonial property and maintenance, an agreement on jurisdiction for ancillary matters and a submission to enforcement. Limits are set by the BGH’s review of content, the non-waivability of separation and child maintenance, and the best interests of the child. How the destination country treats the agreement should be examined by a local adviser.

Frequently Asked Questions

Is a written agreement sufficient if we both already live abroad?

For the choice of law under Rome III, the EuGüVO and the HUP, written form is sufficient if no participating state with an additional form requirement is involved. For provisions on accrued gains, pension rights adjustment and post-marital maintenance under German law, however, Section 1378 (3), Section 1585c BGB and Section 7 VersAusglG require notarial recording before the divorce becomes final. The form required in the state of residence is examined by a local adviser.

Can a German notary record the agreement if one spouse has already emigrated?

Yes, a residence in Germany is not required. However, both spouses must appear before the notary or be validly represented.

Can we agree that the divorce will take place in Germany?

Not for the divorce itself; jurisdiction follows from Art. 3 Brussels IIb. For spousal maintenance (Art. 4 EuUntVO) and matrimonial property (Art. 7 EuGüVO), agreements on jurisdiction are possible within limits.

Does a waiver of maintenance also apply after a later move by the maintenance creditor?

Whether maintenance can be waived is determined by the law of the creditor’s residence at the time of the choice of law (Art. 8 (4) HUP); a later move does not change this. The waiver nevertheless remains subject to the review of content and of the exercise of rights.

Is a notarial maintenance agreement enforceable in other EU countries?

A German enforceable instrument on maintenance is enforceable without a declaration of enforceability in the other member states bound by the HUP. For payments under matrimonial property law, by contrast, the EuGüVO requires proceedings for a declaration of enforceability.

Attorney Dr. Johannes Fiala and the Munich-based firm, which focuses on international succession law, tax law and asset protection, advise clients on divorce settlement agreements before emigrating, from the choice of law for divorce, matrimonial property and maintenance to the agreement on jurisdiction and enforceability in the destination country. Dr. Fiala has published extensively on questions of emigration and asset protection. Please get in touch with the firm without obligation to discuss your individual situation in an initial consultation.