By “Zugewinngemeinschaft”, the law automatically refers to a marriage for which no marriage contract has been concluded. Thus, any marriage without a contractual arrangement is a gain community.
Gain is understood to mean the wealth left over from the difference between the starting and ending assets of both partners.
After a divorce, a compensation can be made on the claim if a partner has gained more assets during the marriage. This compensation is called gain compensation. Above all, it is relevant for the partner with less wealth. The amount of the claim is the difference between the two final assets at the time the divorce application is served.
Gain compensation can be applied for not only after a divorce, but also after a termination of a registered civil partnership.
Compensation is made as a sum of money
Gain compensation takes the form of a payment, as it is usually difficult to distribute individual assets fairly. However, spouses can make deviating arrangements for the gain compensation.
A modified Zugewinngemeinschaft combines the advantages of a Zugewinngemeinschaft with an agreed property separation. If the modified Zugewinngemeinschaft is selected in the marriage contract, a spouse has the advantage that only half of the assets created during the marriage of his deceased partner must be taxed. At the same time it is agreed by the modified Zugewinngemeinschaft that it does not come in the case of a divorce to a gain compensation.
For this special form of the Zugewinngemeinschaft valid, it must be certified by a notary.
Calculation of the gain compensation
The gain in a marriage is defined in Section 1373 of the Civil Code (BGB). Accordingly, it is the amount that remains above the final assets after deducting the initial assets.
1373 Civil Code
Gain is the amount by which a spouse’s terminal assets exceed initial capital.
This calculation can be done by both spouses. In practice, the gain is shared by two and distributed to ex-partners. In order to determine the profit sharing, a statement of the assets of both partners is required. All existing assets are considered. Debts at the beginning of the marriage are also included in the calculation.
Initial assets and final assets
The initial assets comprise the assets each partner had at the time of the marriage. The final assets are the assets that each partner has at the time of the divorce.
Here, however, not the divorce judgment counts as the deadline, but the date of the delivery of the divorce application to the spouse. Thus, in 2009, a protective provision was introduced which prevents the possibility of a transfer of assets which is detrimental to the spouse entitled to compensation.
Not important for the calculation of the profit sharing is what was paid by which account during the marriage.
Example: Partner A has a fortune of € 20,000 at the time of the marriage, and Partner B owns € 8,000 at the wedding. During the marriage Partner A has only slightly increased his assets to 23,000 euros. The assets of Partner B stagnated at 8,000 euros. That is both wealth at the time of filing the divorce petition.
In order to calculate the gain compensation, the respective initial assets and final assets are now offset against each other. This results in a gain of 3,000 euros for Partner A and 0 euros for Partner B.
The surplus of the gain is therefore 3,000 euros. The gain-sharing system provides for half of each for each partner. Partner A and Partner B will each receive € 1,500 as a profit-sharing bonus.
The initial assets comprise the accumulated assets contributed by each partner into the marriage. The time of the marriage counts as a deadline. The initial assets are defined in Section 1374 of the Civil Code as “the property of a spouse after deducting the liabilities at the time of the matrimonial event.”
These include, for example, securities, real estate or cash and other valuables. Since a change in the profit adjustment, negative net worth is also taken into account. So also the debt can be included in the initial assets. The initial assets are then negative.
This fortune is not taken into account
Donations or inheritance are excluded from asset growth. If a spouse achieves a fortune in this way, it is automatically added to the initial assets. With a possible gain compensation, it is thus not taken into account. The legal basis provides paragraph 2 in Section 1374 of the Civil Code.
1374 para. 2 BGB
(2) Property which a spouse acquires by death or with regard to a future inheritance law, gift or equipment shall, after deduction of the liabilities, be added to the initial assets, unless the circumstances give rise to the income is.
Calculate initial assets
Initial capital calculation is only a sum of existing assets. It must be deducted possible liabilities. For example, if a spouse owns a property that has a market value of € 400,000, an existing mortgage of € 150,000 must be deducted from it. The starting capital in this case is then 250,000 euros.
Separate assets during the marriage
The assets that the spouses acquire during marriage belong to them separately for the duration of the marriage. Only in the case of a divorce, the assets are included in the profit-sharing.
Continuing payment It is not always easy to determine the initial assets of the spouse. For these special cases, the law has its own rules:
- You do not know your fortune at the time of the marriage or it can not be proven exactly: In this case, the legislator assumes under paragraph 1377, paragraph 3 of the Civil Code from an initial assets of 0 €. It is therefore recommended, before the wedding to record the asset exactly and to prove for example with bank statements.
- Existing debts at the time of the wedding: If debts are present at the wedding or are higher than the assets, a negative initial assets are assumed according to paragraph 1374, paragraph 3 of the Civil Code.
- Inheritance and Donations: If a spouse inherits or receives a donation, this property will be added to the initial assets pursuant to Section 1374 (2) of the Civil Code. The aim of this provision is that the profit sharing only takes account of the assets of the spouses.
right to information
If a partner applies for a profit sharing, there is a right to information against the other partner. According to his obligation to provide information in accordance with section 1379 of the Civil Code, he must provide an overview of his initial assets and the final assets.
If there is an urgent suspicion that a partner has removed assets during the separation, he is also obliged to provide information. However, there must be evidence of a possible asset shift from the partner requesting information.
The final assets include all assets available at the time the divorce application is served. The origin of the assets does not matter:
- The entire fortune that existed at the time of marriage
- Property from inheritances or donations
- Fortune made with money from inheritance or donations
- Profits from lotteries
- Received pain money
- Surrender value or fair value of life insurance assets
Waste and negative fortune
If a partner wastes his fortune, it is still counted as the final asset. However, evidence of waste is required.
Like the initial assets, the final assets may also be negative if a partner is in debt by the deadline (notification of the divorce petition).
Gain compensation with debts and inheritance?
Basically, an inheritance is added to the initial assets. However, if the inheritance is not spent during the marriage and there is still a fortune at the time of the divorce, it will be included in the final assets.
The debts of a spouse are also included in the calculation of the profit sharing.
Example: Partner A has 30,000 euros at the time of the wedding. During the marriage, he inherits shares from a relative worth 100,000 euros. At the time of the divorce, these securities have a value of 150,000 euros. His partner starts with a fortune of 10,000 euros in the marriage. When both divorced, the assets grew to 20,000 euros.
The initial assets of Partner A is therefore 70,000 euros, his final assets 150,000 euros. His gain is 80,000 euros. The gain of his partner is 10,000 euros. The netting between the two final assets results in the gain of 70,000 euros. Due to the gain compensation, both partners will receive 35,000 euros.