Dealing with assets, property rights in divorce

Dealing with assets, property rights in divorce


property disputes

according to property law

Au goal: Dr. Schrock – Law Firm for Family Law


What does matrimonial property – goods law?

Zugewinngemeinschaft – legal matrimonial property

Separation of property by marriage contract

FREIGHT SEPARATION No compensation of the capital gain during the marriage

Property rights in marriage

General information claim to assets

Irrespective of the matrimonial property regime existing between the spouses, the spouses are obligated to reciprocal property information during the property class from § 1353 BGB. This so-called information or instruction claim is not a claim according to § 242 BGB, but it is derived from §§ 1353, 1385 No. 4 BGB. Thereafter each spouse, while living together in marriage, has to inform the other broadly about the essential elements of their own assets and their development. It serves the purpose of keeping the spouse up to date with the financial situation that is important for the existence of the marriage. In the case of the failure of the marriage, the claim to information becomes an entitlement to information.
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Marriage does not lead to a liability community

Restrictions on Marriage

In legal matrimonial regimes, a spouse can no longer do with his assets in full and leave what he wants. Marital solidarity now demands mutual consideration also in property matters. This concerns orders in the substantially the -> complete Affecting the property of a spouse and objects belonging to the -> household belong.

disposal about the entire fortune

§ 1365 BGB: lawext

(1) A spouse may undertake to dispose of his property as a whole only with the consent of the other spouse. If he has committed himself without the consent of the other spouse, he can only fulfill the obligation if the other spouse agrees.

(2) If the transaction complies with the principles of sound administration, the family court may, at the request of the spouse, replace the consent of the other spouse if he refuses without sufficient cause or prevents them from making a declaration by illness or absence and with the delay connected is.


Entrepreneurial freedom of movement

If no separation of property has been agreed in the case of an entrepreneurial marriage, -> 1365 BGB the entrepreneurial freedom of association be limited by a blockade attitude of the spouse (-> Entrepreneurial freedom & property regime). Or it may be necessary to persuade the spouse to work on a business topic in which the spouse is not involved. Also, the property of the couple can represent the only significant assets. Even then, § -> 1365 BGB.

BGH, Order of 21 February 2013 – V ZB 15/12
§ 1365 Civil Code & subjective theory

To the requirements the consent condition according to § -> 1365 BGB at disposal over individual assets: The BGH again clarifies that § -> 1365 BGB also at Dispositions over individual assets is noteworthy if these are essentially the total assets of a spouse. Other prerequisites is that the Business partner from this circumstance Has knowledge (suction. subjective theory).

OLG Hamm, Decision of 29.09.20011 – II-4 WF 20/11
When can the spouse refuse his consent??

(Quote) "According to § 1365 Abs. 1 S. 1 BGB, a spouse can only agree with the consent of the other spouse To have assets as a whole. The regulation is primarily a protective provision in the interest of the family community and to preserve the economic basis of the family; In addition, it also aims to protect the other spouses from jeopardizing their entitlement to gains on termination of the matrimonial property regime (see, for example, BGH FamRZ 1978, 1380 et seq., Staudinger / Thiele, Commentary on the Civil Code, Revised 2007, § 1365 para 2). However, the law does not abolish the legal freedom of the spouses, even with regard to the business of property as a whole. Rather, it only considers both spouses as having the right to determine whether such transactions should be carried out despite their abstract danger. By requiring the consent of the other spouse, this idea is realized in a legal sense. The other spouse is thus not granted any rights to the assets or to the individual assets (Staudinger / Thiele a.O., Rn. 3), probably but a free one say in matters concerning the economic foundations of the marriage community and the compensation of gains (see O. No 101). If the Denied consent without sufficient reason or can not be granted due to sickness or absence, it can be replaced by the Family Court if the legal transaction complies with the principles of proper administration (Section 1365 (2) BGB); this ultimately depends on the economic expediency of the business taking into account the entire family situation with reasonable economic considerations (Koch, Munich commentary on BGB, 5th edition 2010, § 1365 marginal 93). With "sufficient reason" the consent is only refused if the legal transaction with the protective purposes of § 1365 BGB is not compatible. Any refusal that does not focus on preserving the family’s economic foundations or securing the (potential) future claim for compensation is irrelevant. For example, the wish to enforce one’s own claim against the spouse is not to be taken into consideration, because § 1365 does not have the function of a right of retention (a.o.). When considering the question of whether "sufficient reasons" the refusal of consent does not in any way take into account all aspects relevant to the divergent decisions of the spouses, but only the interests recognized in § 1365 (supra, supra note 96)."

BGH, Judgment of 16.01.2013 – XII ZR 141/10
Remaining right of residence & Fortune as a whole

basic principle: "When assessing whether the transfer of real estate by a spouse relates to his property as a whole, a real estate right reserved by him shall be taken into account as his remaining property."

Restricted on Household items

About objects of married household can a spouse at a -> Zugewinngemeinschaft only if the other spouse agrees (§ -> 1369 BGB).

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Christina Cherry
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