Assets and the equalization of accrued gains

Whatever assets arose during the marriage run through the Zugewinnausgleich (accrued gains). Whatever retirement provision was built up runs through the Versorgungsausgleich (pension rights adjustment). Those are two calculations with rules of their own, and that there are two of them surprises most people.

The dividing line runs between assets and retirement provision. The form of investment does not decide it. Accounts, property and savings belong to the assets and so to the Zugewinnausgleich (accrued gains) (§§ 1363 ff. BGB); the state pension, company pensions, civil service pensions, Riester and Rürup belong to provision and are divided in the Versorgungsausgleich (pension rights adjustment) (§ 1 VersAusglG).

Life insurance shows this well. A private endowment policy without a pension character falls into the assets, a pension entitlement from the same policy into the Versorgungsausgleich (pension rights adjustment). The same euro is not divided twice: whatever is dealt with in the Versorgungsausgleich (pension rights adjustment) stays out of the Zugewinnausgleich (accrued gains).

What is divided is not your assets but your increase. Under the statutory matrimonial property regime, the Zugewinngemeinschaft (community of accrued gains), the assets of both sides stay separate throughout the marriage (§ 1363 BGB). Only at the end is it compared who gained more in that time.

The same calculation applies to each side. Final assets minus initial assets give the accrued gain (§ 1373 BGB), and whoever achieved the higher one pays the other side half the difference (§ 1378 BGB). The cut-off date for the final assets is the service of the Scheidungsantrag (divorce petition) (§ 1384 BGB); whatever happens after that no longer counts for this calculation.

Inheritances and gifts hold a special position. They count towards the initial assets and stay out of the equalization, even where they come in during the marriage (§ 1374 (2) BGB). What is equalized is only the value they gained up to the cut-off date. The inherited family home therefore does not enter the calculation at its full value.

Anyone who does not know what the other side holds has a claim to information (§ 1379 BGB), and for three cut-off dates: the initial assets, the assets at the time of separation and the final assets. On request, supporting documents have to be produced.

You can demand the information on the date of separation while you are living apart and the property regime still exists (§ 1379 (2) BGB). It therefore comes long before the equalization itself, and it is the point at which the later dispute often becomes unnecessary.

The work that decides the outcome comes before the calculation. Whether an item belongs to the Zugewinnausgleich (accrued gains) or to provision, whether an inheritance is privileged, at what value a property or a business is entered. None of that is settled by itself, every item wants a reason.

Where assets lie abroad, a preliminary question comes before the calculation, namely which matrimonial property law applies at all. Since 2019 that is determined by the European Matrimonial Property Regulation (Regulation (EU) 2016/1103); without a choice of law it usually turns on the first joint residence after the marriage. The claim to information reaches assets abroad as well. What takes the effort is above all the documents and the valuation on the ground.

The equalization claim falls due as a sum of money as a matter of principle. Where the value sits in a business or in a property, that often cannot be raised at once. For such cases the law provides for deferral (§ 1382 BGB), and payment by installments can be agreed as well.

The Zugewinnausgleich (accrued gains) can also be excluded, wholly or in part. This can be done in advance in a marital agreement or later in a notarial Scheidungsfolgenvereinbarung (divorce settlement agreement), for example in favor of Gütertrennung (separation of property) (§ 1408 BGB). That freedom has limits: the Familiengericht (family court) reviews such agreements and can set them aside if they put one side at a one-sided and unreasonable disadvantage.

As soon as a separation becomes a financial matter, Dietrich Karcher takes over. Over 30 years of civil law, and years in property and finance alongside it; he therefore reads a valuation report from the side of whoever later has to finance or sell.

Bring what you have to hand: land register extract, the state of the loan, account summaries. You are under no obligation to hire us afterwards.