2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

The so-called community of accrued gains is the default statutory matrimonial property regime. Basically, this corresponds to a separation of assets. Neither the husband’s nor the wife’s assets become the spouses’ joint property (§ 1363 par. 2 BGB [German Civil Code]). The same applies to assets a spouse acquires after the celebration of the marriage. However, any increase in the spouses’ assets that occurs during the course of the marriage will be divided equally once this matrimonial property regime ends, in particular as a result of divorce or the death of one of the spouses. In general, the spouses are not subject to any restrictions on disposal of their assets and will not be liable for the other spouse’s debts (regarding restrictions on disposal, see point 2.4; regarding conditions of liability, see point 2.5).

2.2. Are there legal assumptions concerning the attribution of property?

There is a (rebuttable) presumption in favour of creditors according to which certain assets belong to one of the spouses. This is particularly pertinent in relation to compulsory enforcement (see point 2.6).

2.3. Should the spouses establish an inventory of assets? If so, when and how?

The spouses are not obliged to draw up an inventory of assets. However, drawing up an inventory at the beginning of the marriage (“initial assets”) does make it easier to prove the gains accrued over the course of their marriage (see point 5.3). If no inventory of the initial assets is drawn up, a rebuttable presumption will apply whereby a spouse’s final assets constitute his or her accrued gains (§ 1377 par. 3 BGB).

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

In general, the spouses may dispose freely of their respective property during their marriage, subject to agreements to the contrary.
However, the principle of freedom to dispose of one’s property is limited in the following way:

1. 1) A spouse may not undertake to dispose of his or her property in its entirety without the other spouse’s authorisation. According to the case law, an asset representing 80% of the matrimonial property of the disposing spouse may be considered as “the property in its entirety” (§ 1365 BGB). In practice, these conditions are often met in the case of real estate.
2. 2) Furthermore, a spouse may only dispose of household objects (which he or she owns exclusively) with the other spouse’s authorisation (§ 1369 BGB). The “marital home” is not included among the household objects. In this case, however, the conditions in § 1365 BGB, referred to above, are often met in practice.

If the other spouse does not consent in advance, a contract will remain suspended and deprived of legal effects until the spouse authorises it (§ 1366 par. 1 BGB). If the authorisation is not given, the contract will be invalid. In certain cases, the Family Court may grant consent in lieu of the spouse withholding it. If a third party demands that its contractual partner should submit the consent, said consent must be notified to the third party within two weeks. Otherwise, consent shall be deemed withheld.

2.5. Are any legal transactions made by one spouse also binding on the other?

In general, commitments entered into by one spouse bind him or her alone. However, if a spouse is authorised to enter into commitments in order to ensure that the family’s daily needs are met, the effects of these commitments will also bind the other spouse (§ 1357 par. 1 BGB).

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

The spouses are only liable for their own debts unless the other spouse has, on an exceptional basis, become liable through commitments entered into to ensure that daily needs are covered (see point 2.5). Apart from this specific case, creditors may only make claims against the property of the spouse with whom they have concluded a contract or who is liable to them on some other basis (e.g. tortious liability).

Compulsory enforcement is facilitated by a rebuttable presumption of ownership (see point 2.2). It is presumed that movable objects in the possession of one or other of the two spouses belong to the debtor (distraint) (§ 1362 BGB in conjunction with § 739 ZPO [Code of Civil Procedure]). This presumption does not apply to assets assigned to the exclusive personal use of one of the spouses.

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