Property in the equalization: the value, not the land register

Why the value counts and the land register plays no part

In the Zugewinnausgleich (equalization of accrued gains), only the value of the property counts, no matter who owns it. The property enters the final assets of its owner at its market value on the cut-off date (§ 1376 BGB). The equalization then moves no ownership: it is a claim for money (§ 1378 BGB). If you alone are in the land register, you stay the owner and at most pay a sum of money; the house does not change sides.

This is the heart of the most common misunderstanding. Nobody gets “half the house.” What is equalized is half the difference between the two spouses’ gains, and the value of the property is only one item in that calculation.

How is the value of the property determined?

What counts is the value the property would fetch on the market on the cut-off date, the service of the Scheidungsantrag (divorce petition) (§ 1384 BGB). The purchase price back then, the assessed value for tax purposes and one side’s asking price do not matter. If the two of you disagree, an expert determines the value.

From the market value, the debts still outstanding are deducted: the land charge to the extent it still secures a loan, and the remaining mortgage balance. Only the net value left after deducting these liabilities enters the calculation. A heavily mortgaged property can therefore count with a small value, in extreme cases even a negative one, although its market value is high.

How is an inherited or gifted property treated?

If a spouse inherits a property or receives it as a gift, it essentially stays out: it counts as privileged initial assets (§ 1374 (2) BGB), even if it arrives only during the marriage. Only the increase in value up to the cut-off date is subject to equalization.

Take the parents’ house that was worth €320,000 at the time of the inheritance and €470,000 on the cut-off date. It brings at most the €150,000 increase into the calculation; its full value stays out. Because the value at the time of the inheritance is first adjusted using the consumer price index, the increase turns out somewhat smaller still.

A property you brought into the marriage

If you already owned a property when you married, it belongs to your initial assets. So that mere inflation does not show up as a gain, its value back then is adjusted to the final cut-off date using the consumer price index. Only the difference from the value on the cut-off date is the growth during the marriage that gets divided.

Balancing the value and using the property are two separate questions

Everything so far concerns the value of the property in the equalization. The other big question is a matter of ownership and the marital home, not of the Zugewinnausgleich (equalization of accrued gains). It asks who keeps living there after the separation, who takes over the house, what happens to the joint loan, and whether a partition sale by auction looms at the end.

In the end the two levels interlock, but each follows its own rules; see Marital home, property & household goods and Property on separation.

Our page on assets and the equalization of accrued gains explains how the equalization works as a whole, with the property as just one item in it. If a business sits in the assets alongside the property, the business valuation comes into play as well.

Whether your property enters the calculation at its full value, only with its increase in value, or adjusted for purchasing power can make a considerable difference. In a confidential first consultation, we work out which approach holds up in your case.