If the spouses have not concluded a marriage contract and agreed, for example, separation of property or modified accrued gains, the statutory matrimonial property regime of community of accrued gains applies (Sections 1363 ff. BGB). In the event of a divorce, this results in equalisation of gains. This applies to the vast majority of marriages. Assets acquired during the marriage are divided between the partners. The gain is calculated from the final assets minus the initial assets. The key date is the date on which the divorce petition is served.
If, for example, the assets of one of the two partners have increased more than those of the other during this period, the latter is entitled to half of this difference.
In the case of financial assets or securities, it is easy to carry out such an audit. The situation is different with property. The value of the property may have increased in recent years. This increase should be determined with the help of a valuation report. Such an appraisal costs money - between 1,500 and 3,000 euros depending on the size and type of property. But this is money well spent, as only such an appraisal can serve as evidence for the calculation and for the further use of the property in court proceedings, for example if one partner wants to keep the property and pay out the other.
If, for example, one partner brings an agricultural property into the marriage at a value of 8,000 euros and the land has since been recognised as building land with an equivalent value of 230,000 euros, this increase in value is deemed to be a gain that must be divided upon divorce.
The calculation of capital gains can be complicated in practice. For one thing, factors that reduce the purchase value still have to be included, because the real value can fall over the years and with natural inflation. In addition, there are many exceptions to assets that are added to the initial assets even though they were only acquired during the marriage. This so-called "privileged acquisition" includes inheritances or gifts to one of the spouses.
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