Germany

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MARRIAGE

• The legal effects of the marriage are regulated in §§ 1353 et seq. of the BGB. Firstly, “the spouses have a mutual duty of conjugal community […] and are responsible for each other” (§ 1353, paragraph 1 of the BGB). § 1356 of the BGB concerns then the household management, for which the spouses have to provide “in mutual agreement”. There’s also the possibility, that “the household management is left to” only “one of the spouses”. According to § 1356, paragraph 2 of the BGB “both spouses are entitled to be gainfully employed. In the choice and exercise of a gainful employment, they must take the necessary account of the concerns of the other spouse and the family”. § 1357 BGB concerns the transactions, that must be done in order to provide the necessities of life (Schlüsselgewalt). Pursuant the abovementioned rule, “each spouse is entitled to enter into transactions to appropriately provide the necessities of life of the family, also binding the other spouse. Such transactions entitle and oblige both spouses, unless it appears otherwise from the circumstances”. An exception is foreseen for the case that “the spouses live apart” (paragraph 2). As provided by paragraph 2 “one spouse may restrict or exclude the entitlement of the other spouse to enter into transactions binding him/her”. Moreover, § 1359 BGB provides that “in the performance of the duties arising from the marriage relationship, the spouses are answerable to each other only for the care they customarily exercise in their own affairs”. § 1360 BGB establishes a reciprocal duty of family support. In accordance with this disposition “the spouses have a duty to each other to appropriately maintain the family through their work and with their assets. If the household management is entrusted to one spouse, he/she normally performs his/her duty of contributing to family maintenance through work by carrying out the household management”. § 1360a BGB contains some statements about the scope of the duty of maintenance, providing that “the reasonable maintenance of the family includes everything that is necessary, depending on the circumstances of the spouses, to pay the costs of the household and to satisfy the personal needs of the spouses and the necessities of life of the children of the family entitled to maintenance”. “Maintenance must be provided in the manner that is required by conjugal community. The spouses have a duty to each other to provide for a reasonable period of time the means necessary for the collective maintenance of the family” (paragraph 2). § 1360b BGB applies in case of an overpayment: “If a spouse makes a larger contribution to the maintenance of the family than he/she is obliged to, then in case of doubt it is to be assumed that he/she does not intend to demand reimbursement from the other spouse”. § 1362 of the BGB foresees a presumption of ownership. According to this disposition, “it is presumed in favour of the creditors of the husband and the creditors of the wife that the movable things that are in the possession of one spouse or of both spouses belong to the debtor”. However, “this presumption does not apply if the spouses are living apart and the things are in the possession of the spouse who is not the debtor. Bearer instruments and instruments made out to order which have a blank endorsement are treated in the same way as movable things”. Nevertheless, paragraph 2 of the same disposition add, that “it is presumed of the things intended exclusively for the personal use of a spouse, as between the spouses to each other and between the spouses and the creditors, that they belong to the spouse for whose use they are intended”.

• The default or statutory family property regime under the German law is the community of accrued gains (Zugewinngemeinschaft) (§§1363-1390 of the BGB). The spouses live under this property regime, if no different agreement was made (see § 1363 of the BGB). Spouses can regulate their property relationships otherwise, choosing a different regime. According to § 1408, paragraph 1 of the BGB “the spouses may […] terminate or alter the patrimonial property regime […] even after entering into marriage”. They may decide for the application of another matrimonial property regime model provided by law. They can also decide for the application of another regime changing some provisions foreseen by the law. § 1411 of the BGB provides, that “the marriage contract must be recorded by a notary, and both parties must be present. Provisions departing from the default property regime may be recorded in a register. The registration isn’t required for the validity of the agreement. On the contrary, it only represents an example of negative publicity or negative Publizität. Therefore, if the agreement isn’t registered, the spouses cannot invoke it against third parties (unless these have known the agreement).

If the spouses live under the statutory regime, their property (brought to and acquired by them during the marriage) doesn’t become common property. However, the accrued gains acquired over the course of the marriage are equalized, when the property regime ends (§ 1363, paragraph 2 of the BGB). There’re different rules applying whether the statutory property regime ends by death of a spouse or for other reasons (e.g. annulment, divorce, opting-out) (confront § 1371 et seq. of the BGB). The separation of the spouses’ assets during the marriage means that they are free to manage their property independently (confront § 1364 of the BGB). However, there’re also some restrictions on disposal of their assets (see §§ 1365 et seq. of the BGB). E.g. “a spouse may only with the consent of the other spouse agree to dispose of his/her property as a whole” (§ 1365 of the BGB). Furthermore, “a spouse may dispose of objects of the household of the spouses belonging to him/her and agree to such a disposition only if the other spouse consents” (§ 1369 of the BGB). According to § 1366 of the BGB “a contract which a spouse enters into without the necessary consent of the other spouse is effective if the spouse ratifies it”. § 1357 of the BGB concerning transactions to provide the necessities of life finds application. Some special conditions of liability are foreseen too. Spouses are normally liable only for their own debts. However, one spouse can also be liable for the debts the other spouse entered into through transactions foreseen in § 1357 BGB.

Also under the optional matrimonial property regime of the community of accrued gains (Wahl-Zugewinngemeinschaft, regulated in §§ 1519 et seq. of the BGB) each spouse uses and manages his/her own property. The accrued gains acquired over the course of the marriage are equalized at the end of it. There’s no disposition as the one of § 1365 of the BGB.

If the spouses live under the property regime of the separation of property (this is the case, when the spouses agree on it or opt-out of the default regime without a different agreement, § 1414 of the BGB), the spouses’ assets remain separated and each spouse manages his or her own property. No equalisation of accrued gains takes place. Note, that §§ 1360 et seq. (concerning the duty of family maintenance: see above), 1353, paragraph 1, sentence 2 (mutual duty of conjugal community: see above) and 1357 (regarding transactions to provide the necessities of life: see above) of the BGB apply. Under the property regime of the separation of property, each spouse is only liable for his/her own debts.

If then “the spouses, by marriage contract, agree on community of property” (see § 1415 et seq. of the BGB), their assets become part of the joint property of both of them (marital or common property). “The marital property also includes the property that the husband or the wife acquires during the period of community of property” (§ 1416, paragraph 1 of the BGB). According to § 1416, paragraph 2 of the BGB, “the individual objects become joint property” too. As stated in “1419, paragraph 1 of the BGB “a spouse may not dispose of his share of the marital property and of the individual objects that are part of the marital property”. Furthermore, “he is not entitled to demand partition”. According to § 1421 of the BGB, “in the marriage contract in which” the spouses “agree on community of property, the spouses should specify whether the marital property is managed by the husband or by the wife or by both of them jointly”. If there’re no different agreements, “the spouses manage the marital property jointly”. From the marital or common property is excluded the special property (Sondergut) (§ 1417, paragraph 1 of the BGB), i.e. “the objects that may not be transferred by legal transaction” (as e.g. the usufruct) (§ 1417, paragraph 2 of the BGB). The special property is managed independently by each spouse. This one “manages it for the account of the marital property” (paragraph 3). Also the reserved or separate property (Vorbehaltsgut) is excluded from the marital one (§ 1418, paragraph 1 of the BGB). According to § 1418, paragraph 2 BGB, reserved or separate property comprises the items: 1. that by marriage contract are declared reserved property of a spouse; 2. that a spouse acquires as a result of death or that are given to him/her by a third party free of charge, if the testator specified by testamentary disposition or the third party specified when making the disposition that the acquisition is to be reserved property; 3. that a spouse acquires on the basis of a right that is part of his/her reserved property or as compensation for the destruction, damage or removal of an item that is part of the reserved property or by a legal transaction that relates to the reserved property”. The reserved property is to be managed by each spouse independently. § 1450 et seq. of the BGB applies to the liability for debts. For management by only one spouse, § 1437 of the BGB applies.

• Spouses are responsible for each other also after the dissolution of the marriage by divorce.

In particular, they are entitled to maintenance, if one of the grounds provided by law exists (see §§ 1570, 1571, 1572, 1576, 1573, paragraph 1, 1573, paragraph 2, 1575 of the BGB). The equalisation of pension rights arises according to the principle of equal sharing (see § 1587 of the BGB and the VersAusglG). If the spouses lived under the default property regime of community of accrued gains, “the accrued gains that the spouses acquire in the marriage (…) are equalised if the community of accrued gains ends” (§ 1363, paragraph 2 of the BGB: see above). No equalization is foreseen in case that the spouses lived under the property regime of the separation of their assets. In case that the spouses lived under the property regime of the community of property, a liquidation of the joint property takes place. Note that the debts incurred in respect of the joint property must be deducted before the excess is divided into equal shares for the spouses (§ 1476, paragraph 1 of the BGB).

• In case of a separation, “one spouse may demand from the other the maintenance appropriate with regard to the standard of living and the earnings and property situation of the spouses” (see § 1361 of the BGB, dealing with the support claim). The allocation of the household and the treatment of the family home are regulated in §§ 1361a and seq. of the BGB).

• In the event of the death of the spouse, the situation differs in case of testate and intestate succession.

If one spouse dies testate, the law reserves to the surviving one the right to a compulsory portion (1/2 of the value of his/her legal share) (§§ 2303 et seq. of the BGB). If the spouse dies intestate, the spouse gets ¼ of the estate along with the deceased’s descendants and ½ along with any deceased’s relatives of the 2nd degree or his/her grandparents. Succession rights of the surviving spouse shall be coordinated by the matrimonial property regime. Thus, if the couple lived under the default regime of the community of accrued gains, the surviving partner’s share increases by ¼. In absence of relatives of 1st or 2nd class or grandparents, he or she receives the entire inheritance (§ 1931 and 1371 of the BGB). In addition, an advance legacy (so called Großer Voraus), covering the “objects belonging to the marital household” and “the wedding presents” (§ 1932 of the BGB), belongs to the spouse and the registered partner along with heirs of the 2nd class or grandparents. If there’re heirs of the 1st class, the spouse or partner only has this right “to the extent that he needs them to maintain a reasonable household”.

 

REGISTERED PARTNERSHIP

• The rules contained in the LPartG (and largely aligned with them applicable to the marriage) still apply to the foreign partnerships and to the partnerships entered into in Germany before 1 October 2017.

Registered partners can declare that they want to enter into a marriage (§ 20a LPartG). A registration of a new partnership is no more possible after the introduction of the marriage for the same-sex couples.

 

DE FACTO PARTNERSHIP

• There’re no general statutory rules applying to the unmarried (and non-registered) partners. The non-marital cohabitation is only partially recognised by law in some specific fields. E.g. § 563 of the BGB foresees that not only the spouse, but also the partner, “who maintains a joint household with the lessee” (tenant) “succeeds to the lease” (i.e. tenancy) “upon the death of the lessee”. There’re also some provisions expressly referred not only to the marriage, but also to the cohabitation (§ 20 of the Sozialgesetzbuch XII). Furthermore, some provisions related to the marriage are considered to be applicable to unmarried couples (see e.g. §§ 1969 and 553 of the BGB). The latter can then regulate their relationship through an agreement. General rules on civil law apply too. E.g. compensation claims based on §§ 705 et seq. of the BGB (concerning the commercial partnership) or on § 812, paragraph 1, sentence 2 of the BGB (dealing with the unjust enrichment) can be made.

Based on the national report prepared by Tereza Pertot