Equalisation of accrued gains

In the course of a marriage, assets can accumulate – company shares, real estate, share deposits, works of art, cash assets. These can belong to both spouses together or to one spouse alone. As long as the couple is happy, the ownership situation is less important. Only in the event of separation and in the absence of a marriage contract does the property become the subject of dispute no. 1.Contrary to popular belief, there is no fundamental entitlement of one spouse to equal participation in the assets of the other spouse.

  • Profit sharing,
  • Separation of goods and
  • Community of property

The statutory matrimonial property regime is the matrimonial property regime of the community of gain (§§ 1363 ff. BGB). The basic idea behind this type of matrimonial property regime is that during the course of the marriage the spouses generate assets in the acquisition of which they have an equal share. This matrimonial property regime originated at a time when the wife was retiring from her job after the marriage, looked after the household and brought up the children together, while the husband earned his living. Household management and child care were thus put on an equal footing with professional activity. With the divorce, all assets that the spouses earned together during the marriage were then divided. The person who has accumulated more assets – the period from marriage to the end of the marriage – must transfer half of his or her surplus assets to the spouse who has accumulated less assets. Within the scope of divorce, the so-called gain compensation is carried out for this purpose upon application.Separation of property and community of property are so-called optional property rights and must be expressly agreed and notarised in a marriage contract.

In the case of separation of property, the assets of the spouses remain separate even during the marriage; § 1414 BGB. The assets which one spouse contributes to the marriage remain his or her sole property. The same applies to the property which he or she acquires during the marriage. In the case of divorce, there is no equalisation of assets.

The community of property is a property regime rarely chosen today. A distinction is made between joint property, special property and reserved property. Only in the case of joint property do the assets of both spouses merge. The special property concerns assets that cannot be transferred by legal transaction (e.g. usufruct). The reserved property concerns assets which are assigned to one spouse for sole ownership; § 1415 et seq. BGB.

Even if there is no prenuptial agreement, a provision on equalisation of gains can be made in a post-divorce agreement.

Round Table

We rightly talk about these topics in our Round Table meetings. The Round Table is an action of Herfurth & Partner and serves to clarify and secure wishes and decisions in the family in connection with assets, provision and succession.

The next dates can be found in the Round Table section (welcome homepage).


Further information on many topics can be found in the Publications section (welcome homepage).

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Angelika Herfurth

Attorney at law and specialist lawyer for family law

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