Dispute of the day: divorce does not mean sharing everything

Dispute of the day when divorce threatens existence

The legal basis

That doesn’t have to be a mistake. Even without a marriage contract, the assets of both partners do not merge into an amorphous mass after the wedding. Who – like most couples – marries without making a special agreement automatically lives in the property community of the gain community. However, this does not mean that the spouses have to share everything with each other from day one. On the contrary.

Strictly speaking, the community of gains is rather a special case of separation of goods. Men and women remain the sole owners of all goods that they acquired before and during marriage. In the event of a divorce, the law only prescribes an equalization of assets. So if one of the two partners has been able to build up a larger financial cushion than the other since the wedding, he has to give half of his surplus to the other.

In individual cases, this can lead to complex arithmetic problems. In principle, the process is quite simple. In order to determine which of the two divorced women is entitled to compensation against his ex, the family judges first determine the so-called initial assets of the two partners in the event of a divorce. This means all values ​​that the wife or husband already had on the day of the marriage.

In a second step, each partner’s final assets are calculated on the day on which the divorce application was served. In the third step, the balance is drawn and the profit is calculated: The actual compensation requirement is then obtained by comparing the surpluses, the the have earned each partner during the marriage: Whoever is worse off receives half the difference to the gain of the other spouse.

The man was the sole owner of the house and asked of his living in it Mrs Rental fee. The house was financed with a loan for which both are liable. The woman can refuse to pay the rent if the man does not use the previously paid rent to repay the loan. If the tenancy is terminated, the man can only demand the evacuation step by step against the other spouse’s release from the credit obligation. So the judges of the Stuttgart Higher Regional Court decided (Ref .: 13 U 70/03).

The judges of the Karlsruhe Higher Regional Court made an interesting decision (Az. 19 U 226/04). In the case of divorced spouses, the purpose of the loan is important. If the loan only serves the operational purposes of a spouse, the spouse cannot simply demand compensation.

Here a wife hadn’t wanted to pay her part again. Her reasoning: The loan contracts are immoral and ineffective because she assumed her financial obligation only because of the emotional ties to her husband that still existed. However, a judgment by the Coburg district court did not prove her right (Az. 110820/02). spouses be liable basically together for loans that you took out together after (!) your separation.

There are also cases where a husband cannot request compensation for his loan repayment. That is, when his installment payments have already been taken into account in the maintenance calculation. With the result that he pays little or no maintenance. This was decided by the judges of the Coburg Regional Court (Az. 22 O 993/02).

The loan payments usually reduce the maintenance to be paid. The amounts of money required to repay the marriage-related loans are to be deducted from the income of the maintenance payer. This is the decision of the Cologne Higher Regional Court (Az. 25 UF 131/001).

If one of the two pays the income tax advance payments, he can look around afterwards. Spouses cannot request compensation from their partner in individual cases. This was decided by the judges of the Federal Court of Justice (Az. XII ZR 176/00).

An example: Mrs. X and Mr. Y are getting married. Mr. Y is penniless. Ms. X inherited a property worth 100,000 euros before her wedding. When the municipality decides to designate the area as building land, the value of the fallow area increases to 300,000 euros. A little later, the marriage breaks up. Assuming that the woman would otherwise have generated no surpluses in her marriage and the gain of her husband would also be zero, the following would result: The woman may keep her country after the divorce, but must give her ex half of the profit, i.e. 100,000 euros , pay off.


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Christina Cherry
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