Equalisation of Accrued Gains

In a divorce, the question regularly arises of how the assets built up during the marriage are to be divided. If the spouses live under the statutory matrimonial property regime of the community of accrued gains (Zugewinngemeinschaft), what is known as the equalisation of accrued gains (Zugewinnausgleich) takes place when the marriage ends. The increase in both spouses' assets is compared and half of the difference is paid out to balance it.

The equalisation of accrued gains is one of the central issues in divorce proceedings and affects almost every married couple who have not concluded a marriage contract (Ehevertrag). Dr. Christina Schmidt, attorney at law (Rechtsanwältin), provides comprehensive advice on the equalisation of accrued gains at her law firm in Munich and represents your interests – both in amicable solutions and in contested proceedings.

01 What is the equalisation of accrued gains?

The equalisation of accrued gains is the statutory balancing of assets that takes place when the community of accrued gains comes to an end (§ 1363 of the German Civil Code (BGB)). Contrary to a widespread misconception, the community of accrued gains does not mean that everything belongs to both spouses jointly during the marriage. Rather, each spouse's assets remain separate.

Only when the marriage ends – usually through divorce – is it established which spouse has achieved the greater increase in assets (accrued gains). That spouse must pay half of the difference to the other. The aim is a fair balance of both partners' economic contributions during the marriage.

Good to know The equalisation of accrued gains concerns only the increase in assets during the marriage, not a spouse's entire assets.

02 How is the equalisation of accrued gains calculated?

The equalisation of accrued gains is calculated in several steps. Two values are determined for each spouse:

• Initial assets (Anfangsvermögen): Net assets on the date of the marriage (§ 1374 BGB)
• Final assets (Endvermögen): Net assets on the date the divorce petition is served (§ 1375 BGB)

Each spouse's accrued gains are the difference between final assets and initial assets. The spouse with the higher accrued gains must pay half of the difference between the two spouses' gains.

Example calculation

• Wife: initial assets €20,000, final assets €120,000 → accrued gains €100,000
• Husband: initial assets €10,000, final assets €50,000 → accrued gains €40,000
• Difference between the accrued gains: €100,000 − €40,000 = €60,000
• Equalisation claim: €60,000 ÷ 2 = €30,000

In this example, the wife would have to pay €30,000 to the husband. Dr. Schmidt checks in particular whether the initial and final assets have been determined correctly and whether any transfers of assets need to be taken into account.

03 Equalisation of accrued gains and property

In practice, property is by far the most common point of contention in the equalisation of accrued gains. The family home or a flat bought as an investment is often the most valuable asset.

For the equalisation of accrued gains, the market value of the property on the relevant cut-off date is determined – less any outstanding loan liabilities. If one spouse already owned the property before the marriage, only the increase in value during the marriage is included in the accrued gains.

The following situations are common:

• Jointly owned property: Each spouse owns half. Each share is included in the respective spouse's final assets.
• Property owned by one spouse: The value at the date of the marriage counts towards initial assets, the current value towards final assets. Only the difference counts as accrued gains.
• Acquired jointly during the marriage: Often financed through joint loans – here the valuation is particularly complex.

Tip In most cases, a professional valuation of the property by a certified surveyor is indispensable. Dr. Schmidt works with experienced expert valuers in Munich and guides you through the entire valuation process.

Further information on dividing property on divorce can be found on our page Divorce and Property.

04 Equalisation of accrued gains and inheritances or gifts

A common misunderstanding concerns the treatment of inheritances and gifts in the equalisation of accrued gains. The basic rule is that inheritances and gifts received by a spouse during the marriage are added to that spouse's initial assets (§ 1374(2) BGB). They are therefore privileged and do not increase the accrued gains.

Example If the wife receives an inheritance of €200,000 during the marriage, this amount is added to her initial assets. The inheritance is therefore ultimately excluded from the equalisation of accrued gains.

Good to know However, increases in value of inherited or gifted assets are included in the accrued gains. If an inherited plot of land has risen considerably in value during the marriage, this increase in value may be subject to equalisation.

Valuing and allocating inheritances correctly requires careful legal examination. Dr. Schmidt helps you protect your inherited assets in divorce proceedings.

05 Equalisation of accrued gains and debts

Debts also play an important role in the equalisation of accrued gains. Since the 2009 reform, negative values can also be taken into account in initial assets (§ 1374(3) BGB). This means that if a spouse was in debt at the time of the marriage and paid off those debts during the marriage, his or her accrued gains increase accordingly.

Example If the husband had debts of €50,000 when he married and has assets of €30,000 at the time of the divorce, his accrued gains amount to €80,000 (from −€50,000 to +€30,000).

Conversely, any debts still outstanding at the end of the marriage are deducted from final assets. Negative final assets are, however, set at zero – accrued gains cannot be negative.

06 Can the equalisation of accrued gains be excluded?

Yes – by means of a marriage contract, the spouses can exclude the equalisation of accrued gains in whole or in part. The most common arrangements are:

• Separation of property (Gütertrennung): Complete exclusion of the equalisation of accrued gains. Each spouse keeps his or her own assets.
• Modified community of accrued gains (modifizierte Zugewinngemeinschaft): The statutory regime is retained, but individual assets (e.g. a business) are excluded from the equalisation of accrued gains.
• Lump-sum arrangement (Pauschalierung): A fixed equalisation amount is agreed or the method of calculation is changed.

Such a marriage contract must be notarised (§ 1410 BGB). A marriage contract can also be concluded at any time after the wedding.

Note Completely excluding the equalisation of accrued gains may, in certain circumstances, be contrary to public policy (sittenwidrig) and therefore invalid – in particular if one spouse is unreasonably disadvantaged as a result. Further information can be found on our page on the marriage contract.

07 Can the equalisation of accrued gains be refused?

The equalisation claim cannot be refused unilaterally. However, § 1381 BGB provides for a hardship clause: the equalisation of accrued gains can be refused or reduced if the claim would be grossly inequitable.

This may apply in particular where:

• One spouse has culpably failed to meet his or her financial obligations in the marriage over a long period
• One spouse has recklessly squandered his or her assets
• The spouse entitled to equalisation has committed serious misconduct against the other

The courts set a very high threshold for inequity. Dr. Schmidt examines whether there are grounds in your case that could limit or exclude the equalisation of accrued gains.

08 What time limits apply to the equalisation of accrued gains?

The claim to equalisation of accrued gains becomes time-barred three years after the divorce becomes final (§ 195, § 199 BGB). The claim must be asserted within this period – otherwise you risk losing it.

Tip Have your equalisation claim reviewed at an early stage. As a rule, the equalisation of accrued gains is already dealt with as an ancillary matter (Folgesache) within the divorce proceedings, so a separate application is not necessary.

09 Legal advice on the equalisation of accrued gains in Munich

The equalisation of accrued gains is one of the most complex areas of family law. The valuation of property and business interests and the treatment of inheritances in particular call for sound legal guidance.

Dr. iur. Christina Schmidt, attorney at law, is at your side as an experienced family lawyer at her law firm on Maximilianstraße in Munich. She assists you in determining your equalisation of accrued gains, negotiating with the other side and – if necessary – enforcing your claims in court.

Book an initial consultation now – by phone on +49 89 244 131 96 or via our contact form.