Scope of this article: This article deals exclusively with the practical drafting of the matrimonial property clause (Güterstandsklausel) itself: the wording of an effective choice-of-law clause under Article 22 of the EU Matrimonial Property Regulation, the formal requirements to be observed in different countries, the subsequent choice of law by couples who are already married, and the combination with modifications of the equalisation of accrued gains (Zugewinnausgleich). Which substantive matrimonial property law applies to international marriages in the absence of a choice of law, and how the accrued gain is then calculated, is covered in our article on equalisation of accrued gains in an international marriage. The purely domestic drafting of a marital agreement without any international connection is dealt with in our article on design tips for prenuptial agreements.
A matrimonial property clause often decides sums running into six figures. And yet in practice it is frequently either forgotten altogether or worded so imprecisely that, when it matters, it does not achieve what the spouses actually intended. This is all the more true where international elements are involved: a foreign nationality, a planned move, assets in several countries. Anyone who deals with the choice-of-law clause in a marital agreement (Ehevertrag) merely with the sentence “German law applies” risks the clause failing because of formal requirements they were unaware of, or the clause being formally valid but not delivering in substance what was actually intended.
This article shows how a matrimonial property clause in an international marital agreement is drafted and notarised with legal certainty: from the permissible connecting factors, through the formal requirements of several countries that must be observed cumulatively, to a subsequent choice of law in an existing marriage and a sensible combination with modifications of the equalisation of accrued gains.
Starting Point: The Choice-of-Law Clause under Article 22 of the EU Matrimonial Property Regulation
Since 29 January 2019, Regulation (EU) 2016/1103 (EuGüVO) has uniformly governed which law applies to the matrimonial property regime of spouses with an international connection. By way of enhanced cooperation, it currently applies in 18 Member States (as of September 2026), including Germany, France, Austria, Italy, Spain and the Netherlands. This group of participants still corresponds to the authorising Council Decision (EU) 2016/954 of 9 June 2016; Cyprus, contrary to what is occasionally assumed, has belonged to it from the outset and had already declared its wish to participate by letter of 18 March 2016. No further Member State has joined since. This must not be confused with the enhanced cooperation on the law applicable to divorce (Rome III Regulation), which Estonia joined subsequently with effect from 11 February 2018; for the matrimonial property regime, the EuGüVO specifically does not apply in Estonia. Since a state may join at any time, the current group of participants should be briefly checked where there is a connection to a state that has not participated so far. Under Article 22 (1) EuGüVO, spouses, expressly including those who are already married (more on this below), may determine by agreement the law applicable to their matrimonial property regime. The only options available are:
- the law of the state in which one or both spouses have their habitual residence at the time the choice of law is made, or
- the law of a state whose nationality one of the spouses holds at that time.
Two basic principles of the Regulation are particularly important for drafting. First, the choice of law has universal application (Article 20 EuGüVO): a German notary can record a choice-of-law clause in favour of Russian, Thai or US law, provided the relevant connecting factor is present; to that extent, the Regulation is not limited to the law of EU states. Second, the principle of the unity of the applicable law applies (Article 21 EuGüVO): a choice of law cannot be limited to individual assets. A misconception widespread in practice is the assumption that one could, for example, separately choose the local law for a property located abroad (lex rei sitae) and otherwise choose German law. The German Notaries’ Institute (Deutsches Notarinstitut, DNotI) expressly clarified this in a relevant expert opinion on the EuGüVO: unlike under the former German conflict-of-laws rules, Article 22 EuGüVO specifically does not provide for a choice of law limited to particular assets. A matrimonial property clause that provides for such a split is ineffective in that respect.
For the wording, this means that the clause must name the chosen law specifically. It should not describe it dynamically (“the law in force at the spouses’ common residence from time to time”) but designate it statically, for example “German law shall apply” or “the spouses choose the law of the Republic of Austria”. An indeterminate reference to a law that may change in future runs counter to the purpose of the provision, which is to create legal certainty about the applicable matrimonial property regime, and should be avoided.
Formal Requirements: Minimum Form, Local Form and the Form Required by the Applicable Law, Observed Cumulatively
With international matrimonial property clauses, the real source of error rarely lies in the substantive wording of the choice of law itself, but in the formal requirements. Here the EuGüVO requires a cumulative examination on several levels.
The Minimum Form under Article 23 (1) EuGüVO
Every choice-of-law agreement must be made in writing, dated and signed by both spouses; any communication by electronic means that provides a durable record of the agreement is equivalent to writing. This is the absolute minimum, but on its own it is not sufficient in most constellations that matter in practice.
The Local Form under Article 23 (2) EuGüVO
If both spouses have their habitual residence in the same Member State at the time the agreement is concluded, the national formal requirements for marital agreements in that state must be observed in addition to the minimum form, where such requirements exist. If the spouses live in different Member States, it is sufficient for the agreement to meet the formal requirements of one of the two states of residence.
The Form Required by the Applicable Matrimonial Property Law under Article 25 EuGüVO
For the marital agreement as such, and not only for the separate choice-of-law clause, Article 25 EuGüVO lays down structurally similar but independent requirements: the minimum form (writing, date, signature), plus any additional formal requirements of the state of habitual residence, plus any additional formal requirements that the chosen or applicable substantive matrimonial property law itself prescribes for marital agreements. For agreements to be notarised in Germany, this generally means notarial recording under Section 1410 BGB (German Civil Code), because German law mandatorily prescribes this form for marital agreements. This applies regardless of whether the spouses actually live in Germany, as soon as German law applies by virtue of a choice of law.
Practical Example: German Law for a German Couple Living in Finland
How this cumulative examination works in practice is illustrated by an expert opinion of the German Notaries’ Institute on a couple, both of German nationality, who live in Finland and wish to choose German matrimonial property law. The choice of law itself is possible without difficulty, because the common German nationality is sufficient as a connecting factor under Article 22 (1) EuGüVO; the current Finnish residence does not stand in the way. As regards form, however, several levels apply cumulatively: because both spouses live together in Finland, the Finnish formal requirements for marital agreements must be complied with in addition to the minimum form, specifically two impartial witnesses for authentication and registration with the competent Finnish local register office (magistrate). Since German law is chosen at the same time, Article 25 EuGüVO additionally requires notarial recording under Section 1410 BGB. As a result, the agreement must satisfy both the German notarial form and the Finnish requirements for validity and registration. The opinion also points to a question that has so far remained unresolved in practice: whether the spouses may be represented by an authorised representative when making the choice of law and concluding the agreement. Since the question of whether personal action is required under Article 23 (1) and Article 25 (1) EuGüVO has not been conclusively settled, it is advisable in drafting practice to forgo representation as a precaution and to have both spouses appear before the notary in person.
Formal Requirements: An Overview by Country
For practical drafting, a rough orientation on the formal requirements customary in various countries is helpful. It does not, however, replace a binding review of the current law in the individual case:
- Germany: Notarial recording of the entire marital agreement is mandatory (Section 1410 BGB), regardless of where the spouses live, as soon as German law is chosen.
- France: Agreements on the matrimonial property regime require notarial recording before a French notary (acte notarié); this also applies to the Franco-German optional regime of the elective community of accrued gains (Wahl-Zugewinngemeinschaft).
- Finland: In addition to written form, two impartial witnesses and registration with the magistrate are prescribed, as shown in the example above.
- Thailand: A notarial form in the German sense does not exist; in practice it is nevertheless advisable to document the agreement carefully, including a certified translation, and to involve a sworn interpreter, in order to avoid later problems of proof regarding language skills and understanding of the contract’s content. This aspect has already played a role in the courts (see below).
- USA: This varies from state to state and is often based on the Uniform Premarital Agreement Act; written form without notarial recording is usually sufficient, but what is usually decisive for later validity is full mutual disclosure of assets and independent legal advice for each spouse before signing.
- United Kingdom: There is no mandatory form; however, when later reviewing validity, the courts typically give weight to both partners having received independent legal advice and the agreement having been concluded a reasonable time before the marriage.
Anyone drafting an international matrimonial property clause should therefore always check which formal law applies to the choice of law itself (Article 23 EuGüVO), which applies to the rest of the marital agreement (Article 25 EuGüVO), and how the two relate to each other where the law of the spouses’ residence and the law of their nationality diverge. In practice, it is also advisable to clarify early on whether remote notarisation is possible at all: video notarisation is not yet available for marital agreements under German law, so that either travelling in person to a German notary or notarisation abroad followed by legalisation or an apostille and a certified translation will be required.
Subsequent Choice of Law in an Existing Marriage
A common misconception is that a choice of law is possible only before or at the time of the marriage. The opposite is true: Article 22 (1) EuGüVO expressly allows not only future spouses but also spouses who are already married to “designate or change” the law applicable to their matrimonial property regime. Anyone who discovers years after the wedding that, for lack of an earlier choice of law, a foreign matrimonial property law applies that is unfavourable to them, for example because the first common habitual residence after the marriage was abroad, can change this legal consequence through a subsequent choice of law in the proper form.
Two particular points must be observed when drafting a subsequent matrimonial property clause:
- In principle, effect only for the future (Article 22 (2) EuGüVO): Unless the spouses agree otherwise, a change of the applicable law made during the marriage has effect only ex nunc, that is, for the future. The spouses may, however, expressly agree in the agreement that it is to have retroactive effect, if that is what they want.
- Protection of third parties’ rights (Article 22 (3) EuGüVO): Even if the spouses agree on retroactive effect, it must not adversely affect the rights of third parties deriving from the law previously applicable, for example claims of a spouse’s creditors that arose in reliance on the matrimonial property regime previously in force. A subsequent matrimonial property clause should expressly clarify this aspect in order to avoid later disputes with third-party creditors.
For marriages concluded before 29 January 2019 for which no choice of law under the EuGüVO has been made so far, the former conflict-of-laws rule of Article 15 EGBGB (Introductory Act to the German Civil Code) in the version in force until then continues to apply (Article 229 Section 47 EGBGB). For such “older marriages”, too, a subsequent choice of law in the proper form under Article 22 EuGüVO opens up the possibility of moving into the scope of the Regulation for the first time (Article 69 (3) EuGüVO). In drafting terms, this is regularly done by a notarial supplementary agreement to the existing marital agreement or, where no marital agreement exists yet, by a first, stand-alone choice-of-law agreement without any further accompanying matrimonial property provisions.
Combination with Modifications of the Equalisation of Accrued Gains
The matrimonial property clause initially decides only which substantive law applies at all. Only once it is established that German law applies, whether by choice of law, by objective connection or by virtue of Article 15 EGBGB (old version), does the follow-up question arise of whether the spouses wish to leave the statutory regime of the community of accrued gains (Zugewinngemeinschaft) unchanged or to modify it. In drafting practice, the matrimonial property clause and modification clauses are regularly combined in a single notarial deed, but in legal terms they must be kept strictly separate: as long as it is unclear which law applies, modification clauses based on German provisions (for example an exclusion of business assets from the equalisation of accrued gains, a cap on the equalisation claim or a shift of the reference date) come to nothing if it turns out in a dispute that foreign matrimonial property law actually applies. The order within the deed should reflect this logic: first the choice of law, and only then the substantive arrangement of the chosen regime.
For the modifications of the community of accrued gains commonly used in practice under German law, and for their purely domestic drafting, for example settlement clauses for accrued gains and post-marital maintenance, see in detail the article Design Tips for Prenuptial Agreements. For international couples, it is also advisable to combine the matrimonial property clause with a choice-of-court agreement under Article 7 EuGüVO. That agreement must itself be in writing, dated and signed (Article 7 (2) EuGüVO) and can in principle be concluded at any time: before, during or after the marriage, and even while proceedings are pending. The only courts that may be chosen are those of the state whose law the spouses have chosen under Article 22 EuGüVO or whose law would apply objectively under Article 26 (1) (a) or (b) EuGüVO, and the courts of the state where the marriage was concluded. Such a combination of a choice-of-law clause and a choice-of-court clause gives internationally mobile couples considerably greater planning certainty than a stand-alone matrimonial property clause, because it also clarifies where a matrimonial property dispute is to be heard in the first place. On international jurisdiction in the divorce proceedings themselves and on the law applicable to divorce under the Rome III Regulation, see the article Divorce When Living Abroad.
Substantive Limits: Public Policy and the Core Area Doctrine
A matrimonial property clause that is formally valid and legally permissible is not automatically immune from a later review of its content by a court. Two levels of review must be distinguished.
First, Article 31 EuGüVO provides for a public policy reservation: a foreign provision that would otherwise apply is not applied if its application in the specific case would be manifestly incompatible with the public policy (ordre public) of the state of the court seised. In practice, this concerns rare exceptional cases, for example where a foreign matrimonial property law contains rules that are incompatible with fundamental values of German law.
Second, even a validly made choice of law is, as soon as German law applies, subject to the general review of the content and exercise of marital agreements under Section 138 (1) BGB and Section 242 BGB, as developed by the Federal Court of Justice (Bundesgerichtshof) in its landmark decision of 11 February 2004 (case no. XII ZR 265/02). Under this so-called core area doctrine (Kernbereichslehre), spouses are in principle free to contract out of the statutory rules on the equalisation of accrued gains, pension rights adjustment (Versorgungsausgleich) and post-marital maintenance (nachehelicher Unterhalt). However, where the contractual exclusion concerns the core area of the law on the consequences of divorce, above all maintenance for the care of joint children (Betreuungsunterhalt), followed by maintenance on grounds of age and illness and by pension rights adjustment, the courts examine particularly strictly whether the overall arrangement disadvantages one spouse unilaterally and unreasonably. This review remains relevant for international agreements too, as soon as German law applies; culturally shaped clauses such as an Islamic bridal gift (mahr) are generally recognised, whereas a general exclusion of maintenance claims that do not depend on fault, to the detriment of the economically weaker spouse, is examined critically.
A further aspect that is often overlooked in drafting practice concerns the effect on third parties: under Article 28 EuGüVO, a spouse may in principle invoke the law applicable to their matrimonial property regime against a third party, for example a creditor with whom they conclude a transaction, only if the third party knew or should have known of that law. As against third parties, a contractually agreed separation of property (Gütertrennung) or a modified matrimonial property regime is in many cases effective only if it is entered in a public register intended for that purpose. Anyone drafting an international matrimonial property clause who also has liability issues vis-à-vis business partners or creditors in mind should therefore clarify whether, and where, such registration is provided for and advisable in the country concerned.
The Language Comprehension Problem at Notarisation: A Practical Drafting Lesson from Case Law
How closely formal validity and substantive validity can be linked in marital agreements between spouses of different nationalities is shown by an order of the Berlin Court of Appeal (Kammergericht Berlin) of 19 July 2024 (case no. 16 UF 39/22). In the underlying case, a German entrepreneur and his Thai partner had concluded a notarially recorded marital agreement one day before the wedding, which contained, among other things, a choice of German law, the exclusion of the equalisation of accrued gains and of pension rights adjustment, and a staggered settlement arrangement. At the time of notarisation, the wife had only basic German. A sworn interpreter was present at the notarisation, but interpreted into standard Thai and not into the dialect of the wife’s home province. The Kammergericht nevertheless found that the agreement was not contrary to public morals: what was decisive was that a sworn interpreter had been engaged at all and that the wife could have asked questions if she had difficulties in understanding; the different dialect alone was not sufficient for the courts to assume that her declaration of intent was ineffective.
This leads to a clear recommendation for drafting: whenever a spouse whose native language is different is involved, a sworn interpreter should not only be engaged, but their involvement, including the language variety used, should be expressly documented in the deed. It is also advisable to give the spouse with weaker language skills sufficient time to prepare and, ideally, a written translation of the draft agreement in advance, in order to minimise the risk of a later challenge on the grounds of insufficient understanding. This applies even though, as the decision above shows, such an objection will not necessarily succeed in the individual case.
Common Mistakes When Drafting International Matrimonial Property Clauses
- Dynamic instead of static choice of law: Wording such as “the law in force at the spouses’ common residence from time to time applies” runs counter to the principle of legal certainty and should be replaced by specifically naming a particular state.
- Choice of law limited to particular assets: Splitting the choice of law by individual assets, for example separately for a property abroad, is inadmissible under Articles 21 and 22 EuGüVO.
- Forgotten local form: Anyone who overlooks the additional formal requirements of the state of common residence under Article 23 (2) EuGüVO risks the choice of law being ineffective even though the German minimum form has been observed.
- No clarification of the temporal effect of a subsequent choice of law: Without an express provision, a later change of the applicable law has effect only for the future (Article 22 (2) EuGüVO). Anyone who wants retroactive effect must expressly agree on it.
- Lack of coordination with modification clauses: Choice-of-law clauses and clauses modifying the equalisation of accrued gains should appear in the deed in the right order and refer to one another, so that the substantive provisions do not come to nothing should the choice of law be ineffective for formal reasons.
- No choice-of-court clause: A matrimonial property clause without an accompanying choice-of-court agreement under Article 7 EuGüVO leaves open the question of before which court a matrimonial property dispute is to be heard.
- No registration as against third parties: Where the law of the country concerned provides for a register of matrimonial property regimes, it should be examined whether an entry is advisable in order to secure the effect on third parties under Article 28 EuGüVO.
An Effective International Matrimonial Property Clause in Five Steps
- Examine the connecting factors: Which nationalities and which habitual residence of the spouses come into consideration as connecting factors under Article 22 EuGüVO at the time of the choice of law?
- Specify the chosen law: A static, unambiguous designation of the chosen law, without any split by assets.
- Clarify the cascade of formal requirements: Examine the minimum form, the local form at the common habitual residence and the formal requirements of the chosen matrimonial property law cumulatively and, where necessary, fulfil them in several countries in parallel.
- Add modifications and the choice of court: Only once the choice of law is secure, include substantive modifications of the chosen regime and a choice-of-court agreement under Article 7 EuGüVO.
- Document language and third-party aspects: Where participants speak a different language, record the use of an interpreter and the steps taken to ensure understanding in the deed; where necessary, arrange registration for effect on third parties under Article 28 EuGüVO.
When Is Legal Advice Worthwhile?
Drafting an international matrimonial property clause touches on several interlocking legal levels: the admissibility of the choice of law under conflict-of-laws rules, the formal requirements of several legal systems that must be observed cumulatively, the review of substantive validity under German law and, for couples who are already married, the temporal effect of a subsequent choice of law and the protection of third parties. In practice, errors at any of these levels do not usually render the entire agreement ineffective, but they do create considerable legal uncertainty about which arrangement actually applies, with corresponding potential for disputes on divorce or death. Legal and notarial support is particularly advisable before the first notarisation of an international marital agreement, where a move abroad is planned during an existing marriage, for a subsequent choice of law in an existing marriage, and whenever assets in several countries need to be taken into account.
Dr. Johannes Fiala has for many years advised on international tax law, asset protection and succession law with a foreign connection, including the drafting questions that are regularly overlooked when international matrimonial property clauses are formulated. Please contact us if you would like to draft, review or subsequently amend a choice-of-law clause in your marital agreement.
