Both have the option of concluding a marriage contract so that the matrimonial property regime is legally excluded from the community of accrued gains. Separation of property or community of property is agreed upon in this marriage contract. Such a marriage contract must be notarized.
A non-marital cohabitation is not subject to the community of accrued gains, even if the assets are generated by both partners. In a non-marital partnership, the partners treat each other as strangers in terms of property rights.
Originally, the community of gains was attributed to the housewife marriage. Here, the legislature focused on the unemployed wife raising children, as well as the husband, who generally earns only one wage.
Although this is no longer decisive today, the legislature still sees this as relevant and as a common destiny of the spouses. This means that in the event of a possible separation of the spouses, one partner is entitled to an equalization of gains from the other.
What is an equalization of gains?
Equalization of gains means that the partner who was able to generate less wealth than the other during the marriage is entitled to equalization. This means that the partner who was able to generate more wealth during the marriage must give half of his wealth to the other partner.
It depends on what kind of property it is. Because, if necessary, the asset must be sold, such as real estate.
How is accrual equalization calculated? – Calculate gain
In order to calculate the equalization of gains, it is important to compare the total assets of the spouses. The wealth increase during the marriage is then determined for each person. For this, the starting assets and the ending assets are required. 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 delivery of the application for divorce to the spouse is regarded as the reference date. When calculating the gain, it is not important who paid what in the marriage, but who had what assets at the beginning and at the end and thus the difference. It also doesn't matter who earns more.
Thus, only the gain is decisive. Half of this must be given to the partner who had fewer gains 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 at the time of the divorce 70,000 euros.
The wife's gain is EUR 50,000 – EUR 20,000 = EUR 30,000.
The husband's gain is EUR 70,000 - EUR 15,000 = EUR 55,000.
The excess of gain is 55,000 euros – 30,000 euros = 25,000 euros. This means that the wife can demand half of the 25,000 euros of the surplus and thus 12,500 euros.
What does not count towards gain?
If a marriage contract is concluded before marriage, the equalization of gains can be excluded. The marriage contract sets out in detail who has what rights in the event of a divorce. In addition, the equalization of accrued gains in the event of death can also be clarified here. In the case of a very short marriage, the equalization of accrued gains can also be omitted.
Donations to the spouse are usually not included in the gain. Rather, in such a case, the value of the donation on the day of the donation is decisive. This is added to the initial assets of the respective spouse.
However, inheritances are not excluded. Example: If the wife inherits property 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 does the bonus have to be paid?
The gain must be paid once the divorce has ended with legal effect. This means that the divorce decree must be final and both must be aware of it. This usually takes place when the divorce decree has been sent out by the respective lawyer.
If payment of the equalization of gains is not possible because, for example, the business operation or the economic basis is withdrawn, the respective spouse can apply to the court for an hour. With this, the compensation payment is postponed or a payment plan is developed.
The same applies if the livelihood of underage children would deteriorate as a result of an immediate compensation payment. If this is not reasonable, a deferral can also be stipulated here.
No spouse can be expected to jeopardize their existence because of the payment of the equalization of gains.
Compensation of gains for a house with an increase in value
If the house or apartment experiences an increase, i.e. if the house or property is worth more during the marriage, there will be an increase in assets. From inflation alone, the property will be worth more. This increase in the property's assets falls under the calculation of the gain.
This means that in the event of a divorce, half of this increase in assets goes to the other partner, who was able to accumulate less assets during the marriage. It does not matter when the house was bought by the owner, regardless of whether the sole owner or both are registered as owners.
The real estate appraisal 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 used as a basis. The difference is the gain, no matter how much was invested in the renovation or modernization of the property.
Can I sell the house in sole ownership during the divorce?
If you are the sole owner of a home or apartment and are in the process of a divorce, you may not sell the property until the divorce is final and your spouse approves of it. Because here the respective spouse must expressly agree.
If the divorce has been finalized and you are the sole owner of the property, you can sell the house or apartment without consent. It is important that the procedure for the equalization of accrued gains is completed. If this is not the case, then you either have to wait it out or you need the consent of the ex-spouse.
Can I avoid the equalization of gains for houses in sole ownership?
As a rule, there are few or no exceptions to the equalization of gains. However, you can only avoid the equalization of gains for a house or apartment in sole ownership if:
You signed a marriage contract before getting married
You did not gain any property during the marriage. This also means that you had not carried out any modernization or expansion measures. This would increase the value of the property.
For this reason, a property value calculation must take place. Basically, 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 he cannot find affordable accommodation for himself and the children being cared for. 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 credit for real estate in the event of a divorce?
If you have taken out a loan for your property, the first thing to do is to check whether you are the sole owner or not. If you are the sole owner, you have to pay back the real estate loan yourself.
This also applies if you and your spouse are listed as debtors in the loan agreement.
When does an equalization of gains not have to be paid?
The equalization of gains only has to be paid in the event of an increase in assets. If both spouses were able to generate 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 at the end of the marriage, the equalization of gains also does not apply. There is also no equalization of accrued gains if the former spouse explicitly waives this.
When does the right to compensation for accrued gains become statute-barred?
In the event of a divorce, the other partner, who has accumulated fewer assets during the marriage, is entitled to an equalization of gains. He must assert this claim within 3 years. If he does not assert this claim, the right to compensation for accrued gains becomes statute-barred after 3 years.