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February 6, 2019 by Andrea Riedi

Marital benefits and their consequences in the event of a divorce

Most recently at Christmas there were more or less generous gifts between married couples. It is generally known that these gifts cannot be demanded back, even if the marriage fails at some point.

Read how it is with asset transfers and community of gains in and after a divorce.

In the good times of a marriage, fortune transfers often occur that go beyond the scope of casual gifts. Half of the inherited house in which one lives together is transferred to the spouse or a joint account is set up on which money from one spouse flows, or the spouse receives an irrevocable subscription right to the life insurance. There are many reasons why assets are layered back and forth within a conjugal partnership.

What happens to property transfers during bad times of the marriage, i. H. when the marriage fails?

In contrast to occasional gifts, the transferring spouse does not assume that the other spouse can simply do what he wants with the gift. Rather, he transfers his wealth on the assumption that it will stay in the family and that he can continue to benefit from it. In addition to the idea that existing assets should jointly belong to the spouses, there are also tax reasons or that one would like to withdraw the assets from the access of the creditors. If the marriage fails, the motives are quickly questioned and you want what you gave back from your spouse.

When it comes to the legal question of whether the transferred assets can be reclaimed, the term marriage-related allowance will inevitably appear. A term the meaning of which is known to very few spouses. In most cases, there is a causal link between the affection and the marital partnership. In the end, a tacit contract was concluded between the spouses, the basis of which is the existing marriage. The jurisprudence has developed the concept of marriage-related benefits from this. This must be distinguished from genuine donations between spouses.

According to case law, a marriage-related allowance exists if one spouse gives the other an asset for the sake of the marriage and as a contribution to the realization and organization of the marital partnership. This in the idea or expectation that the conjugal partnership will endure and that he will continue to share in the property and its fruits within the community. This is the business basis of the grant.

If the marriage fails, this legal basis for the donation no longer applies. From this follows the possibility of asserting a claim due to the discontinuation of the business basis according to ยง 313 BGB.

Marriage is an economic and risk community. Marriage-related benefits are therefore to be offset primarily when the gain is made.

However, reversal according to the principles of the discontinuation of the business basis only takes effect in extreme exceptional cases, because case law is based on the principle that marriage-related benefits are to be offset in property law.

For most marriages, the statutory property regime of the community of gains exists. The rule here is that each spouse retains his or her own property during the marriage and that gains are only compensated for when they divorce. This depends on whether one spouse has gained more assets than the other spouse during the marriage. Assets that were brought into the marriage (initial assets) or that were donated or inherited during the marriage are not taken into account.

If the assets are still available at the time of the divorce, the gift of a spouse increases the final assets of the beneficiary spouse. If the beneficiary spouse has a higher profit than the other spouse as a result, part of the benefit flows back to the spouse who paid the benefit via the profit.

According to the case law of the Federal Court of Justice, a right to reimbursement of marriage-related benefits is only given if this appears necessary for reasons of equity. In the case of spouses who live in the statutory matrimonial property regime, however, adequate compensation is usually already provided via the property law.

Reverse processing only in extreme exceptional cases

A donation during the marriage period can only be reclaimed in exceptional cases in accordance with the principles of the discontinuation of the business basis. The prerequisite for this is that the gain adjustment does not lead to an adequate asset equalization and the maintenance of the financial situation created by the grant would be absolutely inappropriate and unacceptable for the donating spouse.

According to the rulings of the BGH, the limit of inappropriateness and unacceptability is usually not exceeded when half of the value of the donation flows back to the donor by way of profit compensation. This equalization quota corresponds to the normal case of property law equalization and the nature of marriage as an economic and risk community.

Whether and when there is an extreme exceptional case according to the case law and whether it is possible to reverse a marriage-related donation despite the community of gains always depends on the individual case. It is always necessary to check specifically the conditions under which marriage-related benefits were made and how the profit situation has changed as a result. The assessment requires precise expertise in property law.

Source of the photos on this page: pixabay

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