5 What are the consequences of divorce/separation?

5.1. How is the property (rights in rem) divided?

Since, in the case of the community of accrued gains as the statutory matrimonial property regime, separate sets of assets coexist, a reallocation of the property will not occur in the event of a divorce. On the other hand, accrued gains are equalized (see point 5.3); in exceptional cases the attribution of particular objects to one of the spouses is set off against the equalization claim (§ 1383 BGB).

5.2. Who is liable for existing debts after the divorce/separation?

  1. 1) Under the regime of the community of accrued gains, each spouse will be liable for his or her own debts. However, in the event of divorce, a spouse’s debts will be taken into account in calculating the acquired property. Debts must be deducted from the spouse’s final property statement and may therefore lead to a negative final property statement (§ 1375 par. 1 BGB). Thus, in the course of the equalization of accrued gains, a spouse can be obliged to compensate the other spouse for his or her debt obligations. Any equalization claim, however, is always limited to the value of the existing property of the spouse obliged to equalize his or her excess of accrued gains (see point 5.3).
  2. 2) Under the matrimonial property regime of the separation of assets, there is no provision for an equalization of accrued gains taking account of preexisting debts.
  3. 3) Under the joint property regime, a debt may only be claimed against the spouses’ joint property (“joint assets”) if the two spouses incurred the debts jointly or one of the spouses can bind the other on the basis of the debt having been incurred in the course of managing their joint property (§ 1438). Only the spouse who manages the joint property may always be held personally liable (§ 1437 par. 2 BGB [German Civil Code]). When the community property arrangement comes to an end, the debts incurred in respect of the joint property must be deducted in order to divide the excess remaining into two equal shares for the two spouses (§ 1476 par. 1 BGB).

5.3. Does one spouse have a claim to an equalisation payment?

  1. 1) Under the matrimonial property regime of the community of accrued gains, the accrued gains that the spouses acquire in the marriage are equalized if the community of accrued gains ends (§ 1363 par. 2 BGB). As a result, the spouse whose individual gains accrued over the course of the marriage exceed the other spouse’s gains is obliged to pay half of the excess to the other spouse  (§ 1378 BGB). The individual gain is calculated by deducting the initial property from the final property. The equalization that can be claimed from one spouse is limited to that spouse’s existing property after deduction of the debts.
  2. 2) Under the regime of the separation of assets, there is no equalization of accrued gains.
  3. 3) The joint property must be “liquidated”. In the course of this liquidation, the spouses must agree to the redistribution of their joint property.