Spouse with an EU pension: is your German pension still shared?

Do I have to share my German pension if my spouse has an EU pension?

Not necessarily: if your spouse has an EU pension, the court can leave your German entitlements undivided to the extent that dividing them would be inequitable for you § 19 (3) VersAusglG.

This covers the EU institutions, which include the European Central Bank, as well as bodies such as the European Patent Office, ESA or EUMETSAT. A German court does not divide their pensions at the divorce, because they are not ready for equalization (ausgleichsreif) § 19 (2) no. 4 VersAusglG. The reasons are explained in EU pension in a German divorce.

All of this assumes that the Versorgungsausgleich (pension rights adjustment) takes place under German law. For couples who live abroad or do not have a German passport, that is a separate question, covered in Both German, both abroad: getting divorced in Germany.

Why the law steps in here

Without this provision, the outcome would be lopsided at your expense. Your German entitlements would be divided right away, and your spouse would receive half of them as a secure entitlement of their own in the statutory pension insurance. Their EU pension, by contrast, would be left for the adjustment after the divorce.

This later adjustment has three weaknesses. It begins only once your former spouse retires and you yourself have reached retirement age. It consists of payments your former spouse has to make personally. And it ends with their death, after which you are left only with what a survivor’s pension (Hinterbliebenenversorgung) provides.

When dividing is inequitable for you

Dividing your entitlements is inequitable as soon as it would put you at a one-sided disadvantage BGH, decision of May 5, 2021, XII ZB 381/20. That is the case if you could obtain your share of your spouse’s substantial pension only through the uncertain adjustment after the divorce. The Federal Court of Justice requires courts to apply the term much more generously here than under the general hardship clause.

The case came from the local court of Königstein via the Higher Regional Court of Frankfurt. The husband had a pension abroad of far greater value, the wife an entitlement in Germany. Her entitlement remained undivided. It made no difference that the husband also had German entitlements worth more than hers. However, only what your spouse acquired during the marriage can count BGH, decision of May 19, 2021, XII ZB 190/18.

How much the court holds back depends on the ratio between the values. The law does not aim to put you in a better position, only to send both sides down the same uncertain route. To do so, the court must determine the value of your spouse’s pension of its own motion, at least roughly. If the institution does not respond, the court can ask your spouse to produce documents. If the inquiry fails solely because your spouse does not cooperate, the court may take this into account in the weighing BGH, decision of July 11, 2018, XII ZB 336/16.

What happens to the entitlements held back

Your entitlements that are held back are reserved for the adjustment after the divorce, just like your spouse’s pension. Once the conditions are met, each side can demand an equalization pension from the other. Each entitlement is equalized separately; the law does not provide for netting them against each other BT-Drs. 16/10144, p. 67.

You see the advantage when something goes wrong. If you cannot access your former spouse’s pension, for example because they die early, you keep your own pension for yourself. Their death also extinguishes their claims against you § 31 (3) sentence 1 VersAusglG. If you die first, your former spouse cannot claim a survivor’s pension for your entitlements that were held back § 25 (2) VersAusglG.

What applies to your spouse’s entitlements

The provision protects only you: if your spouse has German entitlements of their own, for example from years before switching to EU service, the court divides them as usual. You receive half of the share acquired during the marriage. This is in your interest, because it means you receive at least this part at the divorce.

What you should do in the proceedings

Declare your spouse’s pension in the questionnaire on the Versorgungsausgleich (pension rights adjustment), even without figures. How to do this is explained in The V10 pension adjustment questionnaire: what matters. The court examines inequity of its own motion, but only on the basis of the facts it knows. So tell the court:

• which institution your spouse works for, and since when,
• which entitlements you yourself acquired during the marriage, including from child-rearing periods,
• why you would depend on the adjustment after the divorce.

Instead of the later adjustment, you can also conclude an agreement that settles matters between you right away. The options are set out on our page on divorce for ECB and EU staff.

The next step

At our office, attorney Mieke Karcher handles the Versorgungsausgleich (pension rights adjustment). If an agreement involving assets is on the table, attorney Dietrich Karcher joins her. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee is credited toward our further fees. How the further fees are calculated is set out under Costs. Our page on the pension rights adjustment describes the overall framework.