Community of profits
The community of gains is a subtype of the separation of property in the civil code and at the same time the statutory property regime . The partners' goods remain separate during the marriage, however, a profit compensation is carried out if one partner dies or the marriage is divorced ( BGB ).
The matrimonial property regime of the community of gains comes into force automatically by law in the event of a marriage and the registration of the civil partnership in Germany, if the spouses or partners have not reached another agreement through a marriage or civil partnership contract ( BGB). Its main characteristic is that there are basically no joint assets of the spouses / life partners as long as they do not establish co-ownership . Instead, each spouse or civil partner remains the sole owner of the property that he brought into the marriage or civil partnership or acquired during the marriage or civil partnership ( (2) BGB). In the course of judicial separation or divorce proceedings , however, with a few exceptions, the assets gained during the marriage / civil partnership period (the gain ) are divided equally between both partners. The same procedure applies in the event of the death of a spouse or partner. In the real sense, the community of gains would therefore have to be described as the property regime of the separation of goods with equalization of gains.
In the community of gains, each of the spouses or life partners manages their assets alone, but is subject to certain prohibitions of disposal ( , , BGB). However, if a spouse / life partner has sole or unilateral disposal of their assets, although this disposal requires the consent of the other partner according to the law, its effectiveness depends on the latter's approval. If he refuses the approval, he can assert a claim for the return of the now foreign right in his own name. This is the right of revocation as a case of legal litigation.
Popular legal errors
Ownership of property during marriage
In Germany it is often assumed that the statutory matrimonial property regime provides that - in the sense of solidarity-based economic activity during the marriage - the spouses automatically participate equally in what is earned. In fact, however, equal participation in property only applies to the community of achievement , which has become unusual today , but not to the community of gains.
The term community of gains does not mean that all objects acquired during the marriage or civil partnership become joint property of both spouses or partners, nor that the acquired property automatically belongs to both spouses in equal measure.
Since the law amending the law on maintenance , which sets narrower limits on post-marital solidarity, the solidarity during marriage and the options related to the property regime with their legal and tax framework have been increasingly the subject of political discussion.
Contrary to popular legal error, a spouse in a community of profits is not automatically liable for the debts of the other. It does not matter whether the debt arose before or during the marriage. A legal exception, however, is the power of the keys . In addition, there is joint liability (regardless of marriage) if contracts are signed jointly, e.g. B. Bonds for the spouse or debts in joint accounts. Contrary to what is often assumed, the pure separation of property (without profit compensation) does not have to be agreed in order to protect one spouse from the debts of the other. This misconception persists, however, because of the old regulations, as they were valid until the adoption of the Equal Rights Act at the end of the 1950s (see management of assets ) and in which liability for the income of the goods brought into the marriage by the wife is due to the husband's right of use Debt could exist. The term “community of gains”, which is basically misleading here, can convey the false assumption that the assets gained during the marriage are jointly liable for individually assumed obligations of the partners.
The problem at most is the burden of proof according to § 739 ZPO and § 1362 BGB, according to which the legal presumption applies to a married couple that the movable property belongs to the debtor. The other spouse has to refute this assumption for his movable property in the context of the third party objection suit in accordance with § 771 ZPO if he wants to prevent this from being realized.
Cross-partner liability cannot arise from the equalization of gains in the event of a divorce, since negative gains for the equalization procedure are set as zero. In this case, however, the non-indebted partner is still obliged to give half of his own gain (if any) to the indebted partner, because this obligation always exists regardless of the partner's indebtedness. In the end, this compensatory share goes to the creditors. This is in the nature of the community of gains: the partner who is not at fault does not have any disadvantages due to the debt of the other, but it also does not enable him to circumvent the normal obligation to compensate for gains, i.e. H. the indebtedness does not give him any particular advantages. That this can in fact only be prevented by modification or exclusion of the community of gains is the real core of the popular error.
Profit equalization procedure
If the spouses / life partners lived in the matrimonial property regime and the matrimonial property regime ends through an agreement (marriage contract) or through divorce or through the dissolution of the civil partnership, the gain must be offset.
The gain is the difference between a partner's final fortune in divorce and his initial fortune in marriage. The key date for the final assets ( family court with the application for divorce from the other , or the day on which the civil partnership is terminated ( BGB, lis pendens ). The key date for the initial assets ( BGB) is the date of the civil marriage or the establishment of the civil partnership. The gain is calculated separately for both spouses or life partners. Then the two gains are compared and the difference is divided in half. The partner with the lower gain receives half the difference as compensation (in money or monetary value).BGB) is the day on which one of the spouses is served by the
Inheritances and gifts are viewed separately as so-called privileged initial assets and subsequently added to the initial assets or deducted from the final assets. Donations by spouses or partners are also to be considered separately in accordance with German Civil Code.
The initial assets also include severance payments that were promised before the marriage but were only determined afterwards.
Partner A has € 5,000 at the time of marriage; at the time of the divorce, she / he has accumulated assets of € 25,000 from employment (wages). Partner B had € 8,000 at the beginning of the marriage and € 10,000 at the time of the divorce, as he / she earned little extra money during the marriage or could gain in other ways:
- The gain of partner A is thus: € 25,000 - € 5,000 = € 20,000
- The gain of partner B is: € 10,000 - € 8,000 = € 2,000
- The difference between the gains is: € 20,000 - € 2,000 = € 18,000
- Partner B can demand half of this difference (€ 18,000: 2 = € 9,000) from partner A as compensation for his / her (unpaid) services during the marriage.
(This example is simplified; an inflation adjustment and, depending on the circumstances, additional items (e.g. inheritances) must be added to the initial assets .)
Property law reform 2009
With effect from September 1, 2009, the property regime of the community of gains was reformed, but not fundamentally changed. The legislature was concerned with making selective changes to ensure more justice in individual cases and making manipulation of the spouse liable to compensation more difficult.
Calculation of the profit compensation
The reform law left the principle unchanged that the gain is calculated separately for each individual spouse. However, in deviation from the previous legal situation, the law now provides for both negative initial assets and negative final assets to be taken into account.
According to(3) of the German Civil Code (BGB), it is now unrestricted that liabilities over and above the amount of assets are to be deducted. In this way, the real gain, which can also consist in reducing debt, is better captured. For example, if a spouse had debts of € 100,000 at the time of entering into the marriage and final assets of € 200,000 at the end of the marriage, then his gain so far has been € 200,000. In future, taking into account the initially existing debts, a total gain of € 300,000 must be taken into account.
According to(1) sentence 2 of the new version of the German Civil Code (BGB), liabilities beyond the amount of the assets can now also be deducted from the final assets. The result can also be a negative value for the final wealth.
From the consideration of a negative initial wealth and a negative final wealth, it must not be concluded that a so-called negative gain must also be taken into account. Because the gain itself (cf.BGB) must always be formulated as a positive amount or at least zero. If a spouse has more debts in the event of divorce than at the beginning of the marriage, there is consequently no negative gain, but the gain would then have to be set at zero. By excluding a so-called negative gain, one wants to prevent one spouse from being jointly liable for the liabilities of the other spouse through the gain and benefiting his creditors.
Protection against asset manipulation
Dishonest shifts of assets to the detriment of the spouse entitled to compensation are prevented by the new legal situation. According to the previous legal situation, the time of the so-called lis pendens was decisive for the calculation of the gain, i.e. H. the formal delivery of the application for divorce. The final amount of the compensation claim was limited by the value that the property had at the time the divorce became final. Assets that were set aside up to this point in time had an effect at the expense of the spouse entitled to compensation. The spouse entitled to compensation is now protected against such shifts of assets, because the delivery of the divorce petition is not only relevant for the calculation of the gain, but also for the specific amount of the gain compensation claim (cf.BGB).
Improvement of interim legal protection
The protection of the spouse entitled to equalization against pending divorce petition has also been improved. If there is reason to assume that assets are to be moved aside, allegedly existing claims for profit equalization can now be secured in a preliminary judicial legal protection procedure, s. on this in particularf. BGB and BGB. The provision of § 1389 BGB has been abolished without replacement, so that in the event of early profit compensation, an asset arrest is now undoubtedly an option.
Modified gain community
The modified community of gains allows some advantages of the separation of goods , but without bringing the disadvantages with it.
Possible agreements are, for example:
- No profit compensation in the event of a divorce
- Conditional profit compensation for the mother only when a child is born in order to protect the mother
- Solutions after the failure of a short-term marriage
- Exclusion of inheritances increasing in value (inheritance itself is part of the initial assets)
- Exclusion of individual assets , for example a house or a valuable collection
- Compensation for profits through material assets (e.g. real estate ) instead of a cash payment
- Fixing the values of certain assets so as not to argue about them in the event of a divorce
- Determination of initial wealth so that you don't have to argue about it later in the event of a divorce
- Capping of the final assets if a significant increase in assets is to be expected
Change through subsequently concluded civil partnership or marriage contract
A marriage contract can also be concluded at any time after a marriage. If a property regime of separation of property or community of property is contractually agreed in this marriage contract, the community of gains ends with it; a compensation claim can be requested. The matrimonial property regime also ends if the equalization of gains is excluded or a previously agreed community of property is canceled ( 2 BGB, last amended by Art. 3 No. 4 of the law on structural reform of the pension equalization of September 1, 2009). Although the entitlement to gain compensation according to BGB expires with a period of three years, according to BGB the statute of limitations is suspended if the marriage has not yet ended. A corresponding regulation also applies to registered civil partnerships.
Termination by death
Inheritance law solution
For spouses married in a community of gains, the legal succession applies in the event of the death of a partner - without a valid will .
The gain adjustment to determine the inheritance is carried out by a lump sum increase of the legal share of the inheritance of the remaining partner (so-called lump sum gain adjustment according to III, BGB). This flat-rate profit compensation is regulated as follows:
- In relation to first-order relatives , the surviving spouse receives 1/4 + 1/4, i.e. ½ of the inheritance (§ 1931 BGB; § 1371 BGB)
- In relation to relatives of the second order or (in rare cases) grandparents, the surviving spouse receives ½ + 1/4, i.e. 3/4 of the inheritance (§ 1931 BGB; § 1371 BGB)
- The spouse is the sole heir to more distant relatives anyway (Section 1931 BGB)
Since this is a family law claim and not an inheritance claim, it can not be withdrawn by a will . In the case of disinheritance , however, it is not calculated as a flat rate, but as in the case of a divorce.
If, at the time of death, an action for divorce or an application for dissolution of the partnership is pending (i.e. served on the defendant) and the action would have been justified, i.e. would have led to divorce or dissolution, the claim for compensation expires.
Property law solution
The surviving spouse or life partner can, however, refuse the inheritance ( BGB) and then receive both the specifically calculated gain compensation and the so-called small compulsory portion (i.e. the one according to Section 1371 Section 1 BGB ) in accordance with (2 ) and (3 ) BGB not increased compulsory portion), which is usually 1/8, provided there are children entitled to inherit.
Situation in other countries
In Switzerland the community of gains is called achievement participation .
- Munich Commentary BGB, 5th edition 2010, § 1368 Rn. 3 ff.
- Partnership and marriage - life course decisions. Attitudes, motives, knowledge of the legal framework. (PDF; 2.4 MB) Sinus Sociovision / BMFSFJ, accessed on January 27, 2013 . Chapter “Results and Conclusions”, pages 62–64
- Time for Responsibility in the Life Course - Political and Legal Strategies for Action. Documentation of the conference on November 29, 2010 in the German Bundestag, Paul – Löbe House. (PDF; 5.5 MB) BMFSFJ, accessed on January 27, 2013 . Chapter I Working Group on Matrimonial Property Law, pages 24–54
- BGH of November 15, 2000 - XII ZR 197/98.
- Federal Law Gazette I p. 1696 ). of 6 July 2009 (
- Martin Löhnig: The reform of the gain adjustment , legal worksheets (JA) 2010, 321
- Gaining Community ᐅ The statutory property regime | rechtsberater.de . In: rechtsberater.de . ( rechtsberater.de [accessed on August 7, 2018]).
- Angelika Schmid: Gaining inheritance. In: Erbrecht-Heute.de , 2010