GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
proceedings on the matrimonial property regime, the division of a specific item of property jointly owned by the spouses, and the separation of household items and the matrimonial home. The German court cannot, on its own initiative, divide joint property – eg, change the ownership structure of an object by court order. Termination of the statu ‑ tory matrimonial property regime under German law ( Zugewinnausgleich /claim for equalisation of accrued gains) leads to a claim for payment but has no fun ‑ damental effect on the ownership structure. Only in exceptional cases can a spouse request from the court that a specific property item from the other spouse’s assets be transferred to him/her, to be offset against the equalisation of accrued gains claim. Information on Assets If a spouse has filed for divorce or the legal property regime has ended otherwise (eg, by agreement), each spouse has a claim for disclosure against the other spouse regarding the assets at specific dates that are relevant for the calculation of the claim for equalisa ‑ tion of the accrued gains – eg, the assets as of the date of marriage, the date of separation and the date of service of the divorce petition (Section 1379 of the BGB). This claim for disclosure can be made within proceedings. The court can order the respondent to give the requested information and documentation. Such an order can be enforced by imposing a pen ‑ alty payment. The enforcement requires an applica ‑ tion. However, a penalty payment is hard to enforce if the respondent lives abroad, and this takes time. With regards to assets, the German court cannot make orders for disclosure against third parties. Property Regimes German law recognises four different matrimonial property regimes. • By default, spouses obtain the community of accrued gains ( Zugewinngemeinschaft ). The spouses’ respective assets belonging to each spouse remain separate property. Correspondingly, neither spouse is liable for liabilities incurred solely by the other spouse prior to the marriage, nor for obligations entered into by that spouse individu ‑ ally thereafter. In the case of divorce, the gains
accrued during the marriage are equalised accord ‑ ing to Sections 1373–1390 of the BGB. Accrued gains are the amount by which the final assets of a spouse (ie, the assets that belong to a spouse on the date of service of the divorce petition) exceed the initial assets (ie, the assets that belong to a spouse at the date of the marriage). If the accrued gains of one spouse exceed the accrued gains of the other spouse, then half of the difference in the respective gains can be claimed as an equalisation. This equalisation is a payment claim. • In a (pre)nuptial agreement, the spouses can choose: (a) a separation of property ( Gütertrennung ); (b) a community of property ( Gütergemeinschaft ); or (c) a special community of accrued gains between Germany and France ( Wahl-Zugewinngemein- schaft ). Concept of Trusts The common law trust concept is unknown in Ger ‑ man law. 2.4 Spousal Maintenance Under German law, a distinction is made between spousal maintenance during separation, which is granted from the date of separation until the divorce becomes legally binding, and post-divorce spousal maintenance – ie, maintenance for the period after the divorce. Spousal Maintenance During Separation Separation maintenance is regulated by law in Section 1361 of the BGB. It serves not only to facilitate the transition to financial independence for the spouse, but also to maintain the marital standard of living for the lesser-earning spouse for a certain transition period. The amount of maintenance is usually determined according to the principle of equal sharing. This means that both spouses’ net incomes relevant to maintenance are calculated (ie, gross income minus taxes, pension and health insurance contributions, and marriage-related expenses such as mortgage payments on a jointly owned property). The difference between the spouses’ net incomes is then calculated,
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