Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Book 4
Family Law
Division 1
Civil marriage
Title 1
Engagement
Section 1297
Non-actionability, nullity of a promise to pay a penalty
(1) No action for the entering into of a marriage may be based on an engagement.
(2) The promise to pay a penalty for the eventuality that the marriage is not entered into is void.
Section 1298
Duty of compensation in the case of revocation
(1) If an engaged person revokes the engagement, he must reimburse the other engaged person and the parents of the other engaged person, and also third parties who acted in place of the parents, for the damage arising from the fact that in expectation of the marriage they incurred outlays or liabilities. He must also compensate the other engaged person for the damage suffered by the latter because in expectation of the marriage he has taken other measures affecting his property or his earnings.
(2) The damage is to be compensated for only to the extent that the outlays, the entering into the obligations and the other measures were reasonable in the circumstances.
(3) The duty to compensate does not arise if there is a compelling reason for the revocation.
Section 1299
Revocation by reason of fault of the other party
If one engaged person causes the other to revoke by reason of the fault of the former, and this fault is a compelling reason for the revocation, then under section 1298 (1) and (2) he is obliged to pay damages.
Section 1300
(repealed)
Section 1301
Return of the presents
If the marriage does not take place, each engaged person may require the other to return what the former gave as a present or as a sign of the engagement, under the provisions on the return of unjust enrichment. In case of doubt it should be assumed that the claim for return is to be excluded if the engagement ends as a result of the death of one of the engaged persons.
Section 1302
Limitation
The limitation period of the claims specified in sections 1298 to 1301 commences on the breaking off of the engagement.
Title 2
Entering into marriage
Subtitle 1
Capacity to marry
Section 1303
Marriageable age
(1) A marriage should not be entered into before the parties reach the age of majority.
(2) The family court, on application, may grant exemption from this provision if the applicant has reached the age of sixteen and his future spouse is of full age.
(3) Where the legal representative of the applicant or another person with care for the person of the child objects to the application, the family court may grant exemption only if the objection is not based on weighty reasons.
(4) If the family court grants exemption under subsection (2), the applicant no longer requires the prior consent of the legal representative or of another person with care for the person of the child in order to enter into marriage.
Section 1304
Incapacity to contract
A person who is incapable of contracting may not enter into a marriage.
Section 1305
(repealed)
Subtitle 2
Impediments to marriage
Section 1306
Existing marriage or civil partnership
A marriage may not be entered into if a marriage or a civil partnership exists between one of the persons who intend to be married to each other and a third party.
Section 1307
Relationship by blood
A marriage may not be entered into between relatives in direct line and between brothers and sisters of the whole blood and of the half blood. This continues to apply if the relationship is extinguished as the result of adoption.
Section 1308
Adoption
(1) A marriage should not be entered into between persons whose relationship in the meaning of section 1307 was created by adoption. This does not apply if the adoption relationship has been dissolved.
(2) The family court may, on application, grant exemption from this provision if the adoption created a collateral relationship between the applicant and his future spouse. The exemption should be refused if compelling reasons prevent the entering into of the marriage.
Subtitle 3
Certificate of no impediment
Section 1309
Certificate of no impediment for foreigners
(1) A person who, with regard to the requirements for entering into a marriage, is subject to foreign law, except as provided by Article 13 (2) of the Introductory Act to the German Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], should not enter into a marriage before he has furnished a certificate of the domestic authority of his home state that there is no impediment to the marriage under the law of that state. A certificate of the domestic authority includes a written confirmation that is issued by another office under a treaty entered into with the home state of the person affected. The certificate becomes ineffective if the marriage is not entered into within six months after it is issued; if the certificate states a shorter period of validity, the latter is conclusive.
(2) The president of the higher regional court in whose area the registry of births, deaths and marriages to whom the marriage has been notified has his seat may grant exemption from the requirement under subsection (1) sentence 1. The exemption should be granted only to stateless persons with their habitual residence abroad and nationals of states whose public authorities do not issue certificates of no impediment in the meaning of subsection (1). In special cases, it may also be granted to nationals of other states. The exemption is valid only for the period of six months.
Subtitle 4
Marriage
Section 1310
Jurisdiction of the registrar of births, deaths and marriages, curing defective marriages
(1) Marriage is entered into only if the parties contracting the marriage declare before the registrar that they wish to enter into the marriage. The registrar may not refuse his cooperation in the entering into of the marriage if the requirements for the marriage are satisfied; he must refuse his cooperation if it is obvious when the marriage is entered into would be voidable under section 1314 (2).
(2) A registrar includes a person who, without being a registrar, publicly exercised the office of a registrar and entered the marriage in the marriage register.
(3) A marriage is also deemed to have been entered into if the spouses have declared that they intend to be married to each other and
1. the registrar has entered the marriage in the marriage register,
2. the registrar, in connection with the recording of the birth of a child of the spouses, has entered a reference to the marriage in the register of births, or
3. the registrar has received from the spouses a family-law declaration which requires an existing marriage in order to be valid and the spouses have been issued with a certificate of this that is provided in statutory provisions
and the spouses have lived together as spouses for ten years since then or until the death of one of the spouses, but for a minimum of five years.
Section 1311
Personal declaration
The parties contracting the marriage must make the declarations under section 1310 (1) in person and both must be present at the same time. The declarations may not be made subject to a condition or a stipulation as to time.
Section 1312
Marriage ceremony
On the occasion of the marriage, the registrar should ask the parties contracting the marriage separately whether they intend to enter into marriage with each other and, after the parties contracting the marriage have answered this question in the affirmative, state that they are now, by operation of law, lawfully joined spouses. The marriage may be effected in the presence of one or two witnesses if the parties contracting the marriage so wish.
Title 3
Annulment of marriage
Section 1313
Annulment by judicial decision
A marriage may be annulled only by a judicial decision on petition. The marriage is dissolved when the decision becomes final and absolute. The conditions under which a petition for annulment may be made follow from the following provisions.
Section 1314
Grounds of annulment
(1) A marriage may be annulled if it was entered into contrary to the provisions of sections 1303, 1304, 1306, 1307 and 1311.
(2) In addition, a marriage may be annulled if
1. a spouse was in a state of unconsciousness or temporary mental disturbance on the occasion of the marriage;
2. a spouse did not know, on the occasion of the marriage, that a marriage was taking place;
3. a spouse was induced to enter into the marriage by deceit as to circumstances such as, if he had known the factual position and if he had correctly appreciated the nature of marriage, would have prevented him from entering into the marriage; this does not apply where the deceit relates to financial circumstances or was exercised by a third party without the knowledge of the other spouse;
4. a spouse was unlawfully induced to enter into the marriage by duress;
5. both spouses were in agreement on the occasion of the marriage that they did not intend to create a duty under section 1353 (1).
Section 1315
Exclusion of annulment
(1) An annulment of the marriage is excluded
1. in the case of a breach of section 1303, where the requirements of section 1303 (2) were satisfied on the occasion of the marriage and the family court, as long as the spouse is not of full age, ratifies the marriage or if the spouse, after he is of full age, has indicated that he intends to continue the marriage (confirmation);
2. in the case of a breach of section 1304, if the spouse, after the incapacity to contract ends, has indicated that he intends to continue the marriage (confirmation);
3. in the case of section 1314 (2) no. 1, if the spouse, after the unconsciousness or the mental disturbance ends, has indicated that he intends to continue the marriage (confirmation);
4. in the cases of section 1314 (2) nos. 2 to 4, if the spouse, after discovery of the mistake or the deceit or after the position of constraint ends, has indicated that he intends to continue the marriage (confirmation);
5. in the cases of section 1314 (2) no. 5, if the spouses, after the marriage, lived together as spouses.
The confirmation of a person incapable of contracting is ineffective. The confirmation of a minor, in the case of a breach of section 1304 and in the case of section 1314 (2) no. 1, is subject to the approval of his legal representative; if the legal representative refuses the approval without weighty reasons, the family court may, on the application of the minor, substitute the approval.
(2) An annulment of the marriage is further excluded
1. in the case of a breach of section 1306, if, before the new marriage is entered into, the dissolution by divorce or the annulment of the former marriage or the annulment of the civil partnership is pronounced and this pronouncement becomes final and absolute after the new marriage is entered into;
2. in the case of a breach of section 1311, if the spouses, after entering into the marriage, lived together as spouses for five years, or, if one of them died earlier, until the death of that spouse, but for a minimum of three years, unless at the end of the five years or at the time of the death a petition for annulment has been made.
Section 1316
Entitlement to petition
(1) The following persons are entitled to petition:
1. The following persons are entitled to petition: in the case of a breach of sections 1303, 1304, 1306, 1307 and 1311, and in the cases of section 1314 (2) nos. 1 and 5, either spouse, the competent administrative authority and in the cases of section 1306 the third person too. The competent administrative authority is determined by statutory order of the Land governments. The Land governments may transfer the authorisation under sentence 2 to the competent supreme Land authorities by statutory order;
2. in the cases of section 1314 (2) nos. 2 to 4, the spouse named there.
(2) For a spouse who is incapable of contracting, the petition may be filed only by his legal representative. In the other cases, a minor spouse may file the petition only without a representative; he does not need the approval of his legal representative for this.
(3) In the case of a breach of sections 1304, 1306 and 1307, and in the cases of section 1314 (2) nos. 1 and 5, the competent administrative authority should file the petition, unless the annulment of the marriage would represent such severe hardship for one spouse or for the children of the marriage that, exceptionally, it seems advisable to maintain the marriage.
Section 1317
Period for filing petition
(1) In the cases of section 1314 (2) nos. 2 and 3, the petition may be filed only within one year, and in cases falling under section 1314 (2) no. 4 only within three years. The period for filing begins on the discovery of the mistake or the deceit or when the position of constraint ends; however, the period for the legal representative of a spouse who is incapable of contracting does not begin before the date on which he becomes aware of the circumstances that cause the period to commence, and in the case of a minor spouse not before he is of full age. Section 206 and section 210 (1) sentence 1 are to be applied to the running of the period with the necessary modifications.
(2) If the legal representative of a spouse without capacity to contract does not file the petition in good time, the spouse himself, within six months after the incapacity to contract comes to an end, may file the petition.
(3) If the marriage has been dissolved, the petition may not be filed again.
Section 1318
Consequences of annulment
(1) The consequences of the annulment of a marriage are determined only in the following cases by the provisions on divorce.
(2) The provisions of sections 1569 to 1586b apply with the necessary modifications
1. in favour of a spouse who, in the case of a breach of sections 1303, 1304, 1306, 1307 or section 1311, or in the cases of section 1314 (2) no. 1 or 2, did not when the marriage was entered into know that the marriage was voidable, or who has been deceived or threatened, in the cases of section 1314 (2) no. 3 or 4, by the other spouse or with his knowledge;
2. in favour of both spouses in the case of a breach of section 1306, 1307 or section 1311, if both spouses knew of the voidability; this does not apply in the case of a breach of section 1306, to the extent that the claim of a spouse to maintenance would adversely affect a corresponding claim of the third person.
The provisions on maintenance by reason of the care or upbringing of a child of the spouses also apply here, with the necessary modifications, to the extent that a refusal of maintenance would be grossly inequitable with regard to the concerns of the child.
(3) Sections 1363 to 1390 and section 1587 apply, with the necessary modifications, to the extent that this would not be grossly inequitable with regard to the circumstances when the marriage is entered into or in the case of a breach of section 1306 with regard to the concerns of the third person.
(4) Sections 1568a and 1568b apply with the necessary modifications; here, particular account is to be taken of the circumstances when the marriage is entered into, and in the case of a breach of section 1306 of the concerns of the third person.
(5) Section 1931 does not apply in favour of a spouse who, in the case of a breach of sections 1304, 1306, 1307 or section 1311 or in the case of section 1314 (2) no. 1, knew when the marriage was entered into that the marriage was voidable.
Title 4
Remarriage after declaration of death
Section 1319
Annulment of the previous marriage
(1) Where a spouse, after the other spouse has been declared dead, enters into a new marriage, then, if the spouse declared dead is still alive, the new marriage may be annulled for breach of section 1306 only if both spouses knew when the marriage was entered into that the spouse declared dead was still alive at the date of the declaration of death.
(2) On the entering into of the new marriage, the earlier marriage is dissolved, unless both spouses of the new marriage knew when the marriage was entered into that the spouse declared dead was still alive at the date of the declaration of death. It remains dissolved even if the declaration of death is cancelled.
Section 1320
Annulment of the new marriage
(1) If the spouse declared dead is still alive, then notwithstanding section 1319, his former spouse may petition for the annulment of the new marriage, unless he knew when the marriage was entered into that the spouse declared dead was still alive at the date of the declaration of death. The annulment may be petitioned for only within one year. The period begins on the date on which the spouse of the former marriage obtained knowledge that the spouse declared dead was still alive. Section 1317 (1) sentence 3 and (2) applies with the necessary modifications.
(2) The consequences of the annulment are governed by section 1318 with the necessary modifications.
Sections 1321 – 1352
(repealed)
Title 5
Effects of marriage in general
Section 1353
Conjugal community
(1) Marriage is entered into for life. The spouses have a mutual duty of conjugal community; they are responsible for each other.
(2) A spouse is not obliged to comply with the demand of the other spouse to create the community if the demand shows itself as an abuse of his right or if the marriage has broken down.
Section 1354
(repealed)
Section 1355
Family name
(1) The spouses should determine a common family name (family name). The spouses have the family name determined by them. If the spouses do not determine a family name, they keep the names they use when the marriage is entered into after the marriage too.
(2) The spouses may choose the birth name of the husband or the wife or the name the husband or wife had at the time of the declaration on the determination of the family name as family name by declaration to the registry of births, deaths and marriages.
(3) The declaration on the determination of the family name should be made when the marriage is entered into. If the declaration is made later, it must be notarially certified.
(4) A spouse whose name does not become the family name may, by declaration to the registry of births, deaths and marriages, attach his birth name or the name he has at the time of the declaration on the determination of the family name before or after the family name. This does not apply if the family name consists of more than one name. If the name of one spouse consists of more than one name, only one of these names may be attached. The declaration may be revoked to the registry of births, deaths and marriages; in this case, a new declaration under sentence 1 is not admissible. The declaration, if it is not submitted to a German registry office on conclusion of marriage, and the revocation must be notarially certified.
(5) The widowed or divorced spouse retains the family name. He may, by declaration to the registry of births, deaths and marriages, reassume his birth name or the name that he had until the determination of the family name, or attach his birth name or the name he had at the time of the determination of the family name before or after the family name. Subsection (4) applies with the necessary modifications.
(6) Birth name means the name that is to be entered in the birth certificate of a spouse at the date of the declaration to the registry of births, deaths and marriages.
Section 1356
Household management, gainful employment
(1) The spouses provide for the household management in mutual agreement. If the household management is left to one of the spouses, that spouse manages the household on his own responsibility.
(2) 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.
Section 1357
Transactions to provide the necessities of life
(1) 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.
(2) One spouse may restrict or exclude the entitlement of the other spouse to enter into transactions binding him; if there is no adequate reason for the restriction or exclusion, the family court must cancel it on application. Towards third parties, the restriction or exclusion is effective only in compliance with section 1412.
(3) Subsection (1) does not apply if the spouses live apart.
Section 1358
(repealed)
Section 1359
Scope of duty of care
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.
Section 1360
Duty of family maintenance
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 normally performs his duty of contributing to family maintenance through work by carrying out the household management.
Section 1360a
Scope of the obligation to maintain
(1) 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.
(2) 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 in advance the means necessary for the collective maintenance of the family.
(3) The provisions of sections 1613 to 1615 that govern the duty of relatives to maintain apply with the necessary modifications.
(4) If a spouse is not in a position to bear the costs of a legal dispute which relates to a personal matter, the other spouse has a duty to advance him these costs, insofar as this is equitable. The same applies to the costs of defence in criminal proceedings in which a spouse is the defendant.
Section 1360b
Overpayment
If a spouse makes a larger contribution to the maintenance of the family than he is obliged to, then in case of doubt it is to be assumed that he does not intend to demand reimbursement from the other spouse.
Section 1361
Maintenance when spouses are living apart
(1) If the spouses are living apart, 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; for outlays resulting from injury to body and health, section 1610a applies. If divorce proceedings are pending between the spouses, who are living apart, then maintenance, from the date when the proceedings are pending, also includes the costs of appropriate insurance for old age and for reduced earning capacity.
(2) The spouse who is not gainfully employed can be required to earn his own maintenance through gainful employment only if this can be expected of him in view of his personal circumstances, in particular by reason of earlier gainful employment, taking into account the duration of the marriage, and with regard to the financial circumstances of both spouses.
(3) The provision of section 1579 nos. 2 to 8 on the restriction or refusal of maintenance by reason of gross inequity applies with the necessary modifications.
(4) The day-to-day maintenance is to be rendered by making periodical payments. The periodical payments are to be paid monthly in advance. The person obliged owes the full monthly amount even if the person entitled dies in the course of the month. Section 1360a (3) and (4) and sections 1360b and 1605 apply with the necessary modifications.
Section 1361a
Allocation of household effects when spouses are living apart
(1) If the spouses are living apart, either of them may require the other spouse to deliver to him the household objects that belong to him. However, he has a duty to permit the other spouse to continue to use them to the extent that the latter needs them to maintain a separate household and the permission of use in the circumstances of the case is equitable.
(2) Household objects which belong to the spouses jointly are allocated between them in accordance with the principles of equity.
(3) If the spouses cannot agree, the competent court decides. The court may determine a reasonable payment for the use of the household objects.
(4) The property relations are unaffected unless the spouses agree otherwise.
Section 1361b
Matrimonial home when spouses are living apart
(1) If the spouses are living apart or if one of them wishes to live apart, one spouse may demand that the other permit him the sole use of the matrimonial home or of part of the matrimonial home, to the extent that this is necessary, taking account of the concerns of the other spouse, in order to avoid an inequitable hardship. An inequitable hardship may also exist if the best interests of children living in the household are adversely affected. If one spouse alone or together with a third party is entitled to the ownership of or a heritable building right or usufruct in the plot of land on which the matrimonial home is situated, special account must be taken of this; similar provisions apply to the ownership of an apartment, a permanent residential right and a right of habitation running with the land.
(2) If the spouse against whom the application is directed has unlawfully and intentionally injured the body, health or liberty of the other spouse or unlawfully threatened such an injury or injury to life, then as a general rule sole use of the whole home is to be permitted. The claim to permission of use of the home is excluded only if no further injuries and unlawful threats are to be feared, unless the injured spouse cannot be expected to continue living together with the other by reason of the severity of the act.
(3) If one spouse has been permitted the use of the matrimonial home in whole or in part, the other spouse must refrain from everything that is suitable to render more difficult or defeat the exercise of this right of use. He may demand from the spouse with the right of use payment for the use, insofar as this is equitable.
(4) If, after the spouses commence living apart in the meaning of section 1567 (1), a spouse moves from the matrimonial home, and if within six months after moving out he has not notified the other spouse of a serious intention to return, it is irrebuttably presumed that he has permitted the spouse who remained in the matrimonial home the sole right of use.
Section 1362
Presumption of ownership
(1) 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. 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.
(2) 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.
Title 6
Matrimonial property regime
Subtitle 1
Statutory property regime
Section 1363
Community of accrued gains
(1) The spouses live under the property regime of community of accrued gains if they do not by marriage contract agree otherwise.
(2) The property of the husband and the property of the wife do not become the common property of the spouses; the same applies to property that one spouse acquires after marriage. The accrued gains that the spouses acquire in the marriage, however, are equalised if the community of accrued gains ends.
Section 1364
Management of property
Each spouse manages his property independently; however, he is restricted in the management of his property under the following provisions.
Section 1365
Disposition of property as a whole
(1) A spouse may only with the consent of the other spouse agree to dispose of his property as a whole. Where he has agreed without the approval of the other spouse, he may perform the duty only if the other spouse consents.
(2) Where the transaction complies with the principles of proper management, the family court, on the application of the spouse, may substitute the approval of the other spouse if the latter refuses it without adequate cause or is prevented by illness or absence from making a declaration and delay entails risk.
Section 1366
Ratification of contracts
(1) A contract which a spouse enters into without the necessary consent of the other spouse is effective if the spouse ratifies it.
(2) Until the ratification, the third party may revoke the contract.
Where he knew that the man or the woman was married, he may revoke only if the man or the woman untruthfully claimed that the other spouse had consented; in this case too, he may not revoke if when he entered into the contract he knew that the other spouse had not consented.
(3) Where the third party requests the spouse to obtain the necessary ratification of the other spouse, the latter may declare ratification only to the third party; if he made a declaration to his spouse even before the request, the declaration becomes ineffective. The ratification may be made only within two weeks after the receipt of the request; if it is not made, it is deemed to have been refused. If the family court substitutes the ratification, its order is effective only if the spouse communicates it to the third party within the two-week period; failing this, the ratification is deemed to have been refused.
(4) If ratification is refused, the contract is ineffective.
Section 1367
Unilateral legal transactions
A unilateral legal transaction that is entered into without the necessary consent is ineffective.
Section 1368
Asserting the ineffectiveness
If a spouse, without the necessary approval of the other spouse, disposes of his property, the other spouse is also entitled to assert the rights arising from the ineffectiveness of the disposition against the third party in court.
Section 1369
Dispositions of household objects
(1) A spouse may dispose of objects of the household of the spouses belonging to him and agree to such a disposition only if the other spouse consents.
(2) The family court, on the application of the spouse, may substitute the approval of the other spouse if the latter refuses it without adequate cause or is prevented by illness or absence from making a declaration.
(3) The provisions of sections 1366 to 1368 apply with the necessary modifications.
Section 1370
(repealed)
Section 1371
Equalisation of accrued gains in the case of death
(1) If the property regime is ended by the death of a spouse, the equalisation of the accrued gains is effected by the share of the inheritance on intestacy of the surviving spouse being increased by one quarter of the inheritance; it is irrelevant here whether the spouses in the individual case have made accrued gains.
(2) If the surviving spouse does not become an heir and if he has no right to a legacy, he may demand equalisation of the accrued gains under the provisions of sections 1373 to 1383 and section 1390; the compulsory portion of the surviving spouse or of another person entitled to a compulsory portion is determined in this case with reference to the share of the inheritance on intestacy of the spouse before it is increased.
(3) Where the surviving spouse disclaims the inheritance, then in addition to the equalisation of the accrued gains he may demand the compulsory portion even if he would have no entitlement to this under the provisions of the law of succession; this does not apply if he has waived his right of intestate succession or his right to a compulsory portion by a contract with his spouse.
(4) Where descendants of the deceased spouse who are entitled to inherit, and who are not descended from the marriage ended by the death of this spouse, are in existence, the surviving spouse has a duty to grant these descendants, if and to the extent that they need these, the means for a reasonable education from the quarter additionally granted under subsection (1).
Section 1372
Equalisation of accrued gains in other cases
If the property regime is ended in another way than by the death of a spouse, the accrued gains are equalised under the provisions of sections 1373 to 1390.
Section 1373
Accrued gains
Accrued gains means the amount by which the final assets of a spouse exceed the initial assets.
Section 1374
Initial assets
(1) Initial assets means the assets that belong to a spouse at the beginning of the property regime after the deduction of the liabilities.
(2) Assets which a spouse acquires after the beginning of the property regime as a result of death or with regard to a future right of succession, by donation or as advancements, are added to the initial assets after the deduction of the liabilities, to the extent that in the circumstances they are not to be seen as income.
(3) Liabilities are to be deducted beyond the amount of the assets.
Section 1375
Final assets
(1) Final assets means the assets that belong to one spouse at the end of the property regime after the deduction of the liabilities. Liabilities are to be deducted beyond the amount of the assets.
(2) The final assets of a spouse are increased by the amount by which these assets are reduced as a result of the fact that a spouse, after the beginning of the property regime,
1. made gratuitous dispositions by which he was not fulfilling a moral duty or showing regard for decency,
2. squandered property, or
3. performed acts with the intention of disadvantaging the other spouse.
If the final assets of a spouse are less than the assets which he stated in the information provided at the time of separation, this spouse must show and prove that the reduction in assets was not caused by acts within the meaning of sentence 1 nos. 1 to 3.
(3) The amount by which the assets are reduced is not added to the final assets if the reduction was effected at least ten years before the end of the property regime or if the other spouse was in agreement with the gratuitous disposition or the squandering.
Section 1376
Ascertainment of the value of the initial and final assets
(1) The calculation of the initial assets is based on the value that the assets in existence at the beginning of the property regime had at that date and that the assets to be added to the initial assets had at the date of their acquisition.
(2) The calculation of the final assets is based on the value that the assets in existence at the end of the property regime had at that date and that a reduction of assets to be added to the final assets had at the date when the reduction occurred.
(3) The above provisions apply with the necessary modifications for the valuation of liabilities.
(4) An agricultural or forestry enterprise which is to be taken into account in the calculation of the initial assets and the final assets is to be reported at income value if the owner is claimed on under section 1378 (1) and it can be expected that the enterprise is continued or recommenced by the owner or a descendant; the provision of section 2049 (2) applies.
Section 1377
List of initial assets
(1) If the spouses have jointly drawn up a list recording the inventory and the value of the initial assets belonging to one spouse and the objects to be added to these assets, it is presumed, as between the spouses, that the list is correct.
(2) Each spouse may require that the other spouse cooperate in drawing up the list. The drawing up of the list is governed by the provisions of section 1035 applying to usufruct. Each spouse may, at his own cost, have the value of the assets and the liabilities determined by experts.
(3) To the extent that no list has been drawn up, it is presumed that the final assets of a spouse represent his accrued gains.
Section 1378
Equalisation claim
(1) If the accrued gains of one spouse exceed the accrued gains of the other spouse, the half of the surplus is due to the other spouse as an equalisation claim.
(2) The amount of the equalisation claim is limited by the value of the assets that remain, after deduction of the liabilities, at the end of the property regime. The restriction of the equalisation claim emerging under sentence 1 increases in cases falling under section 1375 (2) sentence 1 to include the amount to be added to the final assets.
(3) The equalisation claim arises on the ending of the property regime and from this date on it is inheritable and transferable. An agreement on the equalisation of the accrued gains that the spouses enter into, during proceedings instituted to dissolve the marriage, for the eventuality of the dissolution of the marriage, must be notarially recorded; section 127a also applies to an agreement that is recorded in proceedings on family matters before the court hearing the case. Apart from this, neither spouse may before the end of the property regime agree to dispose of the equalisation claim.
(4) (repealed)
Section 1379
Duty of information
(1) If the property regime has come to an end, or if a spouse has filed for divorce, for the annulment of the marriage or for the premature equalisation of the accrued gains in conjunction with the premature suspension of the community of accrued gains, each spouse may
1. demand information from the other spouse regarding the assets at the time of suspension;
2. demand information on the assets insofar as they are material to the initial and final assets.
Documentation is to be provided on request. Each spouse may require that he be involved in the drawing up of the list to be submitted to him under section 260 and that the value of the assets and the liabilities is determined. He may also demand that the list be drawn up at his cost by the competent authority or by a responsible official or notary.
(2) If the spouses are separated, each spouse may demand from the other spouse information concerning the assets at the time of separation. Subsection (1) sentences 2 to 4 apply with the necessary modifications.
Section 1380
Set-off of advancements
(1) Against the equalisation claim of a spouse is set off what he is given by the other spouse by inter vivos legal transaction with the provision that it is to be set off against the equalisation claim. In case of doubt it is to be assumed that dispositions should be set off if their value exceeds the value of occasional gifts that are customary in keeping with the standard of living of the spouses.
(2) In the calculation of the equalisation claim, the value of the disposition is added to the accrued gains of the spouse who made the disposition. The value is determined according to the date of the disposition.
Section 1381
Refusal of satisfaction for gross inequity
(1) The debtor may refuse to satisfy the equalisation claim to the extent that the equalisation of accrued gains in the circumstances of the case would be grossly inequitable.
(2) Gross inequity may in particular be given if the spouse who made the smaller amount of accrued gains for a long period culpably failed to discharge his financial duties which arise from the marital relationship.
Section 1382
Deferment
(1) On application, the family court defers an equalisation claim, to the extent that it is not disputed by the debtor, if immediate payment would occur at an inopportune time, also taking into account the interests of the creditor. Immediate payment would also occur at an inopportune time if it would cause long-term deterioration in the housing conditions or other aspects of the standard of living of children of the spouses.
(2) The debtor must pay interest on a deferred claim.
(3) On application, the family court may order that the debtor is to provide security for a deferred claim.
(4) The family court decides at its reasonably exercised discretion the amount and due date of the interest and on the nature and scope of the security provided.
(5) To the extent that a legal dispute on the equalisation claim is pending at court, the debtor may make an application for deferment only in these proceedings.
(6) The family court may, on application, set aside or alter a final and absolute decision if the circumstances have substantially changed since the decision.
Section 1383
Transfer of assets
(1) On the application of the creditor, the family court may order that the debtor is to transfer particular objects of his assets to the creditor, to be set off against the equalisation claim if this is necessary to avoid gross inequity for the creditor and if this can be expected of the debtor; the decision must stipulate the amount that is set off against the equalisation claim.
(2) In the application, the creditor must designate the objects whose transfer he seeks.
(3) Section 1382 (5) applies with the necessary modifications.
Section 1384
Date of calculation of the accrued gains and amount of the equalisation claim in the case of divorce
If the marriage is dissolved by divorce, then when the accrued gains are calculated and for the amount of the equalisation claim, the date of the end of the property regime is replaced by the date when the divorce petition was first pending at court.
Section 1385
Premature equalisation of accrued gains of the spouse entitled to an equalisation claim in case of premature cancellation of the community of accrued gains
The spouse entitled to an equalisation claim may demand early equalisation of the accrued gains in case of premature cancellation of the community of accrued gains
1. if the spouses have lived apart for at least three years,
2. if acts of the nature designated in section 1365 or section 1375 (2) are to be feared and this leads to concern with regard to a considerable danger to the satisfaction of the equalisation claim,
3. the other spouse for a long period culpably failed to discharge his financial duties which arise from the marital relationship and it is to be assumed that he will not discharge them in future either, or
4. the other spouse persistently refuses without adequate reason, or has persistently refused without adequate reason until the action for information was lodged, to inform him of the inventory of his assets.
Section 1386
Premature suspension of the community of accrued gains
Each spouse may demand the premature suspension of the community of accrued gains with appropriate application of section 1385.
Section 1387
Date of calculation of the accrued gains and amount of the equalisation claim in the case of premature equalisation or premature suspension
In cases falling under sections 1385 and 1386, then when the accrued gains are calculated and for the amount of the equalisation claim, the date of the end of the property regime is replaced by the date on which the corresponding actions are instituted.
Section 1388
Occurrence of separation of property
When the decision which prematurely suspends the community of accrued gains becomes final and absolute, separation of property occurs.
Section 1389
(repealed)
Section 1390
Claims against third parties of the person entitled to equalisation
(1) The spouse entitled to equalisation may demand from a third party compensation for the value of a gratuitous disposition of the spouse not entitled to an equalisation claim to the third party if
1. the spouse not entitled to an equalisation claim has made the gratuitous disposition to the third party intending to place the spouse entitled to equalisation at a disadvantage, and
2. the amount of the equalisation claim exceeds the value of the assets available after deduction of the obligations on ending of the property regime incumbent on the spouse not entitled to an equalisation claim.
The compensation for the value of the object received must be effected pursuant to the provisions on the return of unjust enrichment. The third party may avoid the payment by returning the object received. The spouse not entitled to an equalisation claim and the third party are liable as joint-and-several debtors.
(2) The same applies to other legal transactions if the intention to disadvantage the spouse was known to the third party.
(3) The limitation period of the claim commences at the end of the property regime. If the property regime ends as a result of the death of a spouse, the limitation is not suspended as a result of the fact that the claim cannot be asserted until the spouse has disclaimed the inheritance or a legacy.
(4) (repealed)
Sections 1391 – 1407 (repealed)
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