What is a community of accrued gains?

Both parties have the option of concluding a marriage contract so that the matrimonial property regime is legally excluded from the community of accrued gains. In this marriage contract, a separation of property or community of property is agreed. Such a marriage contract must be notarized.

A non-marital partnership is not subject to community of accrued gains, even if the assets are generated by both partners. In a non-marital partnership, the partners are treated as strangers in terms of property law.

Originally, the community of accrued gains was attributed to marriages between housewives. Here, the legislator had the unemployed and child-raising wife as well as the husband, who was usually the sole earner, in mind.

Although this is no longer relevant in today's world, the legislator still considers this to be relevant and as a community of fate for the spouses. This means that in the event of a separation of the spouses, one partner is entitled to equalization of gains from the other.

What is an equalization of accrued gains?

An equalization of gains is understood to mean that the partner who was able to generate less wealth than the other during the marriage is entitled to compensation. This means that the partner who was able to generate more assets during the marriage must give half of their assets to the other partner.

It depends on which assets are involved. This is because, if necessary, the asset must be sold, such as a property.

How is equalization of accrued gains calculated? - Calculate accrued gains

In order to calculate the equalization of accrued gains, it is important to compare the total assets of the spouses. The increase in each person's assets during the marriage is then determined. This requires the initial assets and the final assets. The initial assets are the assets that existed before the marriage. The final assets are the assets that the respective partner has at the end of the marriage.

The date of service of the divorce petition to the spouse is regarded as the reference date here. When calculating the gain, it does not matter who paid what during the marriage, but who had what assets at the beginning and at the end and therefore the difference. It also makes no difference who earns more.

This means that only the gain is decisive. Half of this must be given to the partner who had less gain during the marriage.

Example: The wife has 20,000 euros at the time of marriage. At the time of the divorce, she had 50,000 euros. The husband had 15,000 euros and 70,000 euros at the time of the divorce.

The wife's gain is 50,000 euros - 20,000 euros = 30,000 euros.

The husband's gain is 70,000 euros - 15,000 euros = 55,000 euros.

The surplus gain is therefore EUR 55,000 - EUR 30,000 = EUR 25,000. The wife can therefore claim half of the 25,000 euro surplus, i.e. 12,500 euro.

What does not count as gain?

If a marriage contract is concluded before the marriage, the equalization of accrued gains can be excluded. The marriage contract sets out in detail who is entitled to what in the event of a divorce. It can also clarify the equalization of accrued gains in the event of death. If the marriage has lasted a very short time, the equalization of gains can also be omitted.

Gifts to the spouse are generally not added to the gain. Rather, in such a case, the value of the gift on the date of the gift is decisive. This is added to the initial assets of the respective spouse.

However, inheritances are not excluded. Example: If the wife receives a property as an inheritance and the value of the property increases during the marriage, the husband is entitled to half of the increase in value of the property.

When must the gain be paid?

The gain must be paid once the divorce has been finalized. This means that the divorce decree must be final and both parties must be aware of it. This usually takes place when the divorce decree has been sent by the respective lawyer.

If payment of the equalization of accrued gains is not possible, for example because the business or economic basis is withdrawn, the respective spouse can apply to the court for an hour. This postpones the equalization payment or develops a payment plan.

The same applies if the livelihood of minor children would deteriorate as a result of an immediate compensation payment. If this is not reasonable, a deferral can also be agreed here.

Neither spouse can be expected to jeopardize their livelihood due to the payment of the equalization of accrued gains.

Equalization of gains for a house with an increase in value

If the house or apartment experiences a gain, i.e. if the house or property is worth more during the marriage, this results in an increase in assets. The property will be worth more due to inflation alone. This increase in the value of the property is included in the calculation of the gain.

This means that in the event of a divorce, half of this increase in assets is due to the other partner who was able to accumulate fewer assets during the marriage. It does not matter when the house was acquired by the owner, regardless of whether the house is registered as the sole owner or both owners.

The property value assessment must be carried out. The value of the property at the beginning of the marriage, if the property was already owned, and the property value at the end of the marriage are taken as a basis. The difference between the two is the gain, regardless of how much was invested in renovating or modernizing the property.

Can I sell the house in sole ownership during the divorce?

If you are the sole owner of a house or apartment and are going through a divorce, you may not sell the property until the divorce has been finalized and approved by your spouse. This is because the respective spouse must give their express consent.

If the divorce has been legally finalized and you are the sole owner of the property, you can sell the house or apartment without consent. It is important that the proceedings regarding the equalization of accrued gains have been concluded. If this is not the case, you will either have to wait for this or you will need the consent of the former spouse.

Can I avoid the equalization of gains for houses in sole ownership?

As a rule, there are few to no exceptions to the equalization of accrued gains. However, you can only avoid the equalization of gains for a house or apartment in sole ownership if:

you have concluded a marriage contract before the marriage

you had no gain on the property during the marriage. This also means that you did not carry out any modernization or extension work. This would increase the value of the property.

For this reason, a property value calculation must be carried out. As a general rule, an apartment or house cannot simply be taken away from a sole owner. However, the court can allow the non-owner to use the property.

This is not only possible if the non-owner can prove that they cannot find affordable accommodation for themselves and the children in their care. If this is the case, the non-owner can obtain permission to use the apartment or house. However, the financial circumstances remain unchanged.

What to do with a property loan in the event of divorce?

If you have taken out a loan for your property, the first thing to check is whether you are the sole owner or not. If you are the sole owner, you will have to repay the loan yourself.

This also applies if you and your spouse are listed as debtors in the loan agreement.

When does an equalization of accrued gains not have to be paid?

The equalization of accrued gains only has to be paid if there is an increase in assets. If both spouses have been able to earn the same amount of assets during the marriage, this will result in the calculation of the equalization of gains.

If both spouses had debts before the marriage and also had debts at the end of the marriage, the equalization of accrued gains is also waived. Likewise, there is no equalization of accrued gains if the former spouse explicitly waives this.

When does the limitation period expire for a claim to equalization of gains?

In the event of a divorce, the other partner who has accumulated fewer assets during the marriage is entitled to an equalization of gains. They must assert this claim within 3 years. If he or she does not assert this claim, the claim to equalization of accrued gains becomes time-barred after 3 years.