Property law
The property law regulates marriages and other state-registered communities in Germany ( civil unions ) whether assets individually to the spouse or partner or attributable to common and whether and how in the event of separation, the common assets and generated gains are to be distributed. For this purpose, the legal systems offer matrimonial property regimes, whereby there is regularly a basic legal model (the statutory matrimonial property regime ) and so-called optional property regimes.
In principle, every natural person is the sole owner of their assets. It may, when unlimited capacity exists, with its property procedures within the law at will, anyone from the action to the same rule (§ 903 BGB) and any capital gains collected. Living together ( table and bed ) and doing business within a marriage, however, requires property law solutions that do justice to the common purpose in a marriage.
International property models
In terms of legal system, according to international and (German) historical practice, the following basic types in particular can be distinguished in the order of ascending communalisation
- the separation of property ,
- the administration of the property (former administration and usufruct of the property brought in by the wife),
- the community of gains (property regime of participation in the gain),
- Property regimes with common property
- the community of achievement ,
- the carpool ,
- the community of exclusion (certain assets are excluded from the common property),
- the community of property .
The property regime by marriage (or partnering justified) and through divorce or death resolved a spouse and dealt . In a concubinage no separate property regime is established. This does not affect the possibility of a fractional community that arises through the acquisition of objects with common means (e.g. household objects, land, condominiums). The spouses can choose from various legally stipulated property regimes by marriage contract . The matrimonial property regime, which is used in the absence of a marriage contract, is called the statutory matrimonial property regime.
Legal situation in Germany
Applicability of German law
If the spouses are German , German courts and authorities apply German law.
A distinction must be made for foreigners :
If both spouses are or were foreigners who belong to the same country at the time of the marriage, the provisions of their home country apply to the property law in Germany ( Art. 15 Paragraph 1 EGBGB in conjunction with Art. 14 Paragraph 1 No. 1 EGBGB). If only one spouse is a foreigner, if both foreign spouses belong to different countries or if the spouses are asylum seekers or other Convention refugees , the law of the property regime is determined by the law of their habitual common residence ( Art. 15 Para. 1 EGBGB in conjunction with Art. 14 Para 1 no. 2 EGBGB), in the absence of a joint residence under the law of the state with which the spouses are most closely connected in another way ( Art. 15 para. 1 EGBGB in conjunction with Art. 14 para. 1 no. 3 EGBGB).
Independently of Art. 15 EGBGB, German law applies according to the law on the matrimonial property regime of displaced persons and refugees ( Art. 15 para. 4 EGBGB).
By means of a marriage contract, the spouses can also choose the property law of the state to which one of them belongs, or the property law of the state in which one of them has his habitual residence. For land you can also choose the law of the location; However, this then leads to a legal split in the marital property regime.
The choice of law must be made in Germany in a notarized form. If it is carried out abroad, the form customary there is decisive.
German property regimes and statutory matrimonial property regime
Since the Equal Rights Act 1957, German property law has differentiated between the property regimes of the community of gains , the separation of property and the community of property . If no marriage contract has been concluded, the statutory property regime of the community of gains applies.
Between 1900 and 1953, the property regimes of goods Nutzverwaltung , separation of property, community of goods, which Fahrni Community and the Community property provided. The legal property regime was the utility administration. From 1966 to 1990 the statutory property regime of the community of acquisitions applied in the GDR; Here, property acquired during the marriage became joint property (§§ 13 ff. FGB GDR ).
Up to 1900 there were over 100 different property rights in Germany, which were mainly assigned to the following five systems:
- Former management and usufruct (also known as management or administrative community) with around 16 million people
- Community of property with approx. 14 million people.
- Achievement community with around 10 million people.
- Driving community with approx. 9 million people.
- Dotal system with approx. 3 million people.
With effect from September 1, 2009, the property regime of the community of gains was reformed , but not fundamentally changed. Since then, the law on the amendment of the profit equalization and guardianship law of July 6, 2009, which was published on July 10, 2009 in the Federal Law Gazette Part I No. 39 on page 1696, has been in effect. This results in further changes to the property law to delimit the pension equalization in the company pension scheme .
On February 2, 2011, the Federal Cabinet passed the government draft to implement another property regime, the Franco-German electoral property regime .
Legal situation in Austria
Since 1957, Austrian property law has differentiated between the property regimes of the community of gains, the separation of property or the community of property. If no marriage contract is concluded, the statutory matrimonial property regime applies. Between 1900 and 1953 the property regimes of the administrative community (utility administration), the separation of property, the community of property, the carpooling community and the community of acquisitions were provided. The legal property regime was the administrative community.
Legal situation in Switzerland
Marital property law determines what belongs to whom during marriage, and it regulates the division of property after death. It thus provides the basis for a subsequent dispute on inheritance law.
There are basically three property regimes:
- Share of acquisitions (ordinary property regime) Art. 196 ff. ZGB
- Community of goods Art. 221 ff. ZGB
- general community of property
- Community of achievement
- Exclusion community
- Separation of property Art. 247 ff. ZGB
The share of achievements (= German community of gains) includes personal property and achievements, which are taken into account in the dissolution. Personal property includes assets that were already present before the marriage or that were added in the form of personal gifts or inheritance during the marriage. Personal property also includes personal belongings. The achievement includes all other assets, in particular those that have accrued in the form of capital and labor income during the marriage and were not consumed by the daily expenses. The income from the management of the property is also part of the achievement.
In the case of community of property, a marriage contract stipulates what belongs to one's own property and what does not. So this is not defined by law. Everything else falls into the so-called common property. In this form, everyone is still responsible for their wealth. When the person dies, the entire transfer of the entire property is usually provided. In the event of divorce, separation, annulment of the marriage or transfer to the separation of property, each spouse takes back from the common property what would be his own property under the acquisition share.
With the separation of property, a clear separation of property between man and woman is stipulated in the marriage contract, even in the event of the marriage being dissolved . This is useful if inheritance claims from heirs to a first marriage are to be protected. A separation of property can also be useful when a person is founding a company. This allows the other person to protect their property from the first person's creditors .
Web links
Individual evidence
- ↑ Art. 12 Geneva Refugee Convention
- ↑ Christiane A. Lang, "The coexistence of the gain and the community of achievement", djbZ 4/2008, p. 176 ff.
- ↑ Christiane A. Lang, "§ 40 FGB / DDR: Basis of claims of the present", FORUM Family Law, Issue 1 + 2/2006, p. 29 ff.
- ↑ Press release: New model for European integration in civil law ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , BMJ, February 2, 2011 (accessed July 8, 2012)
- ↑ Federal cabinet adopts government draft to implement the Franco-German electoral status , Ed. Beck-Online , February 2, 2011 (accessed on July 8, 2012)
