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Divorce, division of the furniture

Divorce, division of the furniture

DR. JÖRG SCHRÖCK


Distribution of household items

on the occasion of the divorce (§ 1568 b BGB)

principle

Delineation to the profit-sharing method

So far > Household items as common assets they are to qualify

  • on the occasion of >Separation provisionally distributed (§ 1361a Abs.2 BGB), whereby the ownership remains unaffected (§ 1361a Abs.4 BGB).
  • on the occasion of >Divorce from Household distribution method recorded and reassigned under ownership law (§ 1568b BGB). The budgetary allocation procedure is governed by the rules on the profit-sharing scheme in relation to the common assets" alt ="> Gain equalization method" aria-label ="> Gain equalization method"> > Gain compensation procedure as lex spezialis before. Here, in the course of the reorganization of the ownership relationships, a value adjustment takes place via § 1568b (3) BGB. However, items that someone has actually purchased alone or that he has brought into the marriage, are to be regulated by the gain compensation. So they either belong to the beginning and / or end assets (BGH, NJW 1984, 484).

basic principle : Household items which are the sole property of one spouse can not be (anymore) assigned to the other spouse in the budgetary procedure and are subject to the extra compensation (following Senate Judgment of 17 November 2010 – XII ZR 170/09 – FamRZ 2011, 183).

(Quote, marginal 12) "According to the new regulation in § 1568 b BGB there is a right to transfer and transfer of Household items, relying solely on those in common ownership of the spouses Household items can judge. The Household items in the sole ownership of a spouse, however, remain according to the ideas of the legislature the > Merger balance reserved (BT-Drucks. 16/10798 p. 23). This view is based on the case-law of the Federal Court of Justice, in particular of the Senate, according to which a spouse is the sole owner Home articles (BGHZ 89, 137, 144 ff = FamRZ 1984, 144, 146 f, Senate judgments BGHZ 113, 325, 333 = FamRZ 1991, 1166, 1168 f., and of 24 October 1990 – XII ZR 101 / 89 – FamRZ 1991, 43, 49). Accordingly, the objects are not only to be considered in the final assets, but necessarily also in the initial assets".

Term: " Household"

Whether an object of spouses or children as Household decide what rules the items will be distributed and dealt with in the event of separation and divorce. Household items are all the objects, according to the assets and living conditions of the spouses and children for their living together as well as for the housing and housekeeping certainly (see BGH FamRZ 84, 144 and 575). For example

No household item Such items are for a spouse personal Use are determined and the individual or professional Purposes of a spouse or children (FamRZ 82, 399). The decisive factor is not the ownership of the object, but its purpose and use. The claim for the return of such objects is to be asserted as a family affair according to § 266 Abs.1 FamFG before the family courts.

When is a car household item?

Often it is asked if a car as Household is to be valued? Household distribution procedure is or is not. Here it depends – as I said – on how the car is used and what purposes it serves. Was the car predominantly for family purposes used, he belongs to the household. Was the car outweigh professional used, he is not a household item. For families, the own only one car often comes one mixed use before (trips to the workplace and shopping trips for the family). In these cases, we predominantly the car qualified as a household object (FamRZ 03, 1927, FamRZ 07, 1325). The ownership is not important.

  • If the household object is a joint property, the household controversy (reallocation of the objects) is governed by § 1568b BGB
  • If the household item is the sole property of a spouse, no allocation procedure pursuant to § 1568b BGB is required. The sole ownership is called >Asset position included in the profit balance sheet. The rights of sole ownership (such as the right of restitution) are superseded by the special provisions of § 1361a S.2 BGB (Lease of Use) as lex spezialis. If the PkW in sole possession of a spouse as a household object is also used by the other spouse, and there is a surrender obligation under § 1361a Abs.1 S.2 BGB, the other spouse may be required to pay a compensation. If the spouses can not agree on the value of the compensation for use, this must be determined by the court (§ 1361a Abs.3 S.2 BGB).
    >More

Are (domestic) animals "household"?

Not only for the children, but also for the way in which they work and stay pets After separation and divorce can be argued violently. But unlike children, there are no fully differentiated legal rules in family law, such as dealing with animals in divorce cases by the courts. There is no other solution than animals how to handle things and to subject them to the household distribution procedure when the ownership of the animal is controversial.

(Quote, marginal 11): "Household goods include all movable things which, according to the life circumstances of the spouses, are usually the furnishing of the dwelling, the housekeeping and the living together of the family, i. to serve the common lifestyle (FA-FamR / Klein, 6th ed., 8th chapter marginal 167 m.w.Nw.), so that the suitability and purpose are decisive. Even if animals are nothing (§ 90 a BGB), should the regulations for the provisional (§ 1361 a BGB) or final household distribution (§ § 8 ff HauratsVO) be applied analogously (see OLG Schleswig NJW 1998, 3127 [concerning a poodle], OLG Zweibrücken FamRZ 1998, 1432 = FuR 1998, 235; OLG Naumburg FamRZ 2001, 481 [ref horses]; Johannsen / Henrich / Brudermüller, Marriage Law, 4th ed., Marginal note 23 to § 1361 a BGB; PWW / Weinreich, BGB, 3rd ed. 10 to § 1361 a BGB). Whether basically the parrots, for which, on the basis of the legal presumption pursuant to Section 8 (2) of the Household Inventive Regulation, in the absence of contrary concrete arguments of the parties, the sole ownership of co-ownership of the former spouses must be assumed, in accordance with the HausratVO or as objects for a common hobby in accordance with the principles of Community law between the parties to be distributed (for the delimitation compare Fa-FamR / Klein, 6th ed. 8th chapter marginal 170), also requires no decision, even if according to the number of animals whose attitude in the converted house, the indisputable acquisition costs and the public representation of the animals, as evidenced by the internet, and the otherwise concurrent distribution of the contents, it seems doubtful that the parrots and Budgies were purchased and kept by the parties solely for the sake of hobby."

annotation The wife can not reclaim the common dog more than two years after separating from her husband and moving to another state. On the other hand, the legislative commitment to ethically sound animal welfare speaks. Although a dog basically as "household" however, it should be borne in mind that it is an organism which, after two and a half years of residence with the husband, certainly regards it as the principal person of reference. Therefore, a separation from the master with the welfare of the animal seems incompatible.

core message: According to § 90a S.3 BGB, the rules applicable to property are to be applied to spouses, which is why the assignment of a spouse on the occasion of the separated life according to § 1361 a BGB and on the occasion of the divorce according to § 1568b Abs.1 BGB. After the divorce, therefore, only the transfer of co-owned married dogs can be required. Unless the presumption of § 1568b Abs.2 BGB intervenes, the family court must decide on the property as a preliminary question of its own motion. In this case, before the marriage for the future joint household acquired married dogs after the marriage will only become joint property of the spouses, if the change in ownership corresponds to their will.

Prohibition of disposal § 1369 BGB

Regardless of the ownership situation may be due to § > 1369 Civil Code no Spouse about one Household item alone, i.e. without the consent of the other spouse feature (e.g., sale).

core message: A mini excavator can be an abstract consideration both Household as well as an object which serves exclusively the personal use or the personal interests of a spouse. Unlike many items, where a use for the common household or housekeeping is obvious, this is not the case with a mini excavator. Digestion may be the use of the minibagger in the past. A regular, continuous use for family purposes or a commitment to a variety of such projects speaks for the classification as Household. A non-regular ongoing use of the minibagger for just one project within a year suggests that the husband’s recreational activities were paramount to the acquisition and that the mini-excavator was a “lover’s object” of the husband (so no Household).

Facts: The participants are spouses. The Applicant seeks to pay out the half of the proceeds from the sale of a mini-bagger, which the Respondent has sold without her consent. The district court Hamburg rejected the application. The Higher Regional Court of Hamburg recommended that the petitioner withdraw the complaint against the decision of the district court of Hamburg and denied her the granting of legal aid for lack of success.

Usage regulation in the separation phase (§ 1361a BGB)

According to § 1361a BGB, each spouse can use the in his property located Household items from the other, however, he is obliged, the objects to the other Use to leave, insofar as it is necessary for the maintenance of a separate budget and the transfer is in accordance with the circumstances of the case of fairness. For the equity decision >1361a para. 2 BGB "distributed between them according to the principles of equity". Who as Household an item belonging to the other or to the other spouse has one for the transfer of use compensation for use to perform (§ 1361a Abs.1 S.2 BGB). If the spouses can not agree, decide >1361a para. 4 BGB). The remaining with wife and children washing machine, which belongs to the husband as the sole owner, belongs to the husband.

Property dispute on the occasion of the Sche />

Over a final distribution of Household with appropriate new regulation of ownership is only in a separate budgetary procedure decided on the occasion of the divorce. This can be as > Consequential case be asserted. Then it is no longer just about a surrender of use against compensation (§ -> 1361a Abs.1 S. 2 BGB), but to the final argument of co-ownership to the Household items. Assets are subject to the Household distribution method after § > 1568b Civil Code only if this Household are. The division and assertion of restitution claims in relation to such objects shall then be subject to the judicial procedure of > 200 para. 2 no. 2 FamFG. All household items are covered by this procedure, regardless of whether they are the sole property of a spouse or co-owned by the spouses. Therefore, all must Household items in a request for dispute resolution under § > 200 para.2 para. 2 FamFG in one Household list be listed (§ > 203 para.3 FamFG).

Watch out!

No single confrontation of common household items

As long as the common budget has not been fully explained and no rules have been reached out of court, applications for it are isolated Publication of individual objects after § > 985 BGB in addition to the procedure under § > 200 Para.2 para. 2 FamFG locked out. As part of the Household distribution method must have one total confrontation respectively.

a) For this purpose, it is clarified as a preliminary question in this procedure, which subject matter in sole ownership of a spouse. This is to be surrendered to the owner (§ 1361a Abs.1 BGB). Can not be clarified who the Household heard, we legally supposed, that he is both spouse together belongs (§ 1568b Abs. 2 BGB). So who is sole ownership at the Household claims he has to to prove.

b) Is located Household in common property the spouse, these items must be specially made in accordance with the § -> 1568b (1) BGB are transferred to the sole property of a spouse, for which the other spouse has a compensation after § > 1568b para. 3 BGB.

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