Family Law
Division of Assets and Marital Property in Germany
The division of matrimonial property is the legal process of dividing assets and debts accumulated during a marriage when a couple divorces. It involves determining what property belongs to each spouse and how it should be distributed fairly, based on applicable laws or agreements.
In Germany, this process is called “Vermögensaufteilung” or “Vermögensauseinandersetzung”. The rules for dividing matrimonial property depend on the matrimonial property regime chosen by the spouses, the most common of which is ‘community of property’.
In this article we’ll look at the types of regime available and how this affects the division of property on divorce, as well as the tax implications of property division and some practical tips if you’re going through this process.
As all cases are unique, contact our firm today to discuss how we can assist with your matrimonial property division and protect your financial interests.
Secure your financial future with expert legal advice on the division of matrimonial property.
Call the Office (M-F: 9am-6pm)
+49 (0)30 88702382
Contact us via email
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Division of Assets and Marital Property, the German law
In Germany, the division of matrimonial property on divorce is primarily governed by the matrimonial property regime (Eheliches Güterrecht). The default regime, unless otherwise agreed by the couple, is called the Zugewinngemeinschaft (community of accrued gains). However, couples can also choose other property regimes through a marriage contract (Ehevertrag), such as Gütertrennung (separation of property) or Gütergemeinschaft (community of property).
Zugewinngemeinschaft (Community of Accrued Gains)
This is the default regime unless the couple expressly agree otherwise.
It is governed by Section 1363 of the German Civil Code, which establishes community of property as the default property regime, and Sections 1372-1374 of the German Civil Code.
Under this system, each spouse retains ownership of the property he or she brought into the marriage, as well as any property acquired during the marriage.
Each spouse owns and manages his or her property independently during the marriage.
On divorce, a calculation is made to determine the gain (Zugewinn) each spouse has made during the marriage. This gain is the difference between the value of each spouse’s property at the time of marriage and at the time of divorce. The spouse with the higher gain must pay half of the difference to the other spouse, so that both partners share equally in the increase in assets made during the marriage.
Certain assets, such as inheritances or gifts received during the marriage, are generally excluded from the calculation of accrued gains.
Gütertrennung (Separation of Property)
Under this system, there is no community of property or division of accrued profits (§ 1414 BGB).
Couples can opt for this system by means of a prenuptial or postnuptial agreement (Section 1363(2) BGB).
Each spouse keeps their property separate during the marriage and on divorce. There is no equalisation of gains made during the marriage.
This system may be preferred in cases where one or both spouses wish to protect their individual assets, such as businesses or inheritances.
Gütergemeinschaft (Community of Property)
This arrangement is rare and must be expressly chosen in the marriage contract.
All property (with some exceptions, such as personal gifts or inheritances) becomes joint property on marriage. On divorce, all joint property is divided equally. Debts are also divided equally between the spouses.
This is governed by Sections 1415, 1416 and 1470 of the BGB.
Prenuptial and postnuptial agreements
Couples can opt out of the default regime or choose a different regime through marriage contracts (Ehevertrag), such as prenuptial or postnuptial agreements. These agreements allow couples to deviate from the default legal rules for dividing property and provide flexibility to tailor the property regime to their specific needs and circumstances.
In order to be considered valid, prenuptial agreements must meet certain legal requirements and be notarised to be legally binding under Section 1410 of the German Civil Code (BGB). The notary ensures that both parties fully understand the consequences of the contract.
While the primary function of prenuptial and postnuptial agreements is to allow spouses to opt out of the default property regime, couples can also modify certain aspects of the default rules under the community property regime. For example, they can agree to exclude certain assets from the division of accrued gains or limit the extent of the division of assets.
They can also determine how certain assets, such as businesses or property, will be treated in the event of divorce. This can protect a spouse’s personal property, such as a family business, from being subject to equal division.
In the event of divorce, couples can use prenuptial or postnuptial agreements to regulate spousal support. However, any clauses that unfairly disadvantage one spouse, particularly in situations involving child support or significant economic disparity, can be challenged in court.
Courts in Germany have the power to review the fairness of a prenuptial or postnuptial agreement, particularly if it results in significant inequality or if one spouse is unfairly disadvantaged.
Section 138 of the German Civil Code (BGB) provides that contracts can be declared void if they are contrary to public policy (sittenwidrig). For example, if an unfair agreement would leave one spouse without adequate financial support after a divorce, the court can set aside or modify the agreement.
Prenuptial and postnuptial agreements:
- Are particularly useful for people who want to protect certain assets, such as a family business, inheritance or property, from being divided in the event of divorce.
- Provide clarity on how assets will be divided, reducing potential conflict and ensuring a smoother process if the marriage ends in divorce.
- Provide the flexibility to tailor the division of property and financial arrangements to a couple’s specific needs, such as providing for children from a previous marriage or dealing with complex asset structures.
- Prevent dissipation of assets and ensure fair but protected asset management for wealthy individuals or where there is a significant financial disparity between spouses.
Nature of Assets
In Germany, the division of matrimonial property depends on the matrimonial property regime chosen by the spouses: Zugewinngemeinschaft, Gütertrennung or Gütergemeinschaft.
The main types of property that can be divided include:
- Real estate (such as the family home)
- Bank accounts and savings
- Investment portfolios (stocks, bonds, investment accounts)
- Business interests
- Personal property (vehicles, jewelry, and furniture)
- Life insurance policies
- Intellectual property
- Household goods
Inheritances and gifts are generally excluded from division.
As we will see in the following example, the same principles apply in all cases, regardless of the nature of the assets to be divided.
Marital Home and Division of Properties
Under the Zugewinngemeinschaft, each spouse retains ownership of the property he or she owned before the marriage. Property acquired during the marriage is included in the calculation of the final assets (Endvermögen) for the purpose of dividing the accrued gains.
If a property increases in value during the marriage, this increase is subject to division. However, only the increase in value is divided, not the property itself. So, for example, if spouse A owned a house worth €100,000 before the marriage and the house is worth €150,000 at the time of the divorce, the €50,000 increase would be considered part of their accrued gains. Half of this increase (€25,000) would go to spouse B.
If the spouses have opted for the separate property regime, each spouse retains full ownership of any property they own. There is no sharing or division of property, regardless of whether it was acquired before or during the marriage. If spouse A owns a house worth €150,000 and spouse B owns a second property worth €50,000, each will retain ownership of their respective properties after the divorce. There is no redistribution or division.
All property acquired during the marriage, and in some cases even property acquired before the marriage (unless excluded in a marriage contract), is considered joint property under the community property regime.
On divorce, the joint property is divided equally, usually sold or one spouse compensates the other for their share. For example, if the couple jointly owned a house worth €300,000, each spouse would be entitled to €150,000 of its value on divorce.
Mortgages and loan repayments
A similar division of property applies to mortgages and other debts.
Debts incurred during the marriage may affect the final calculation of assets, but are generally kept separate, unless they were joint debts (e.g. a mortgage on a jointly purchased home) in the case of community of accrued gains. Only debts incurred for joint purposes or for running the household may affect the calculation of gains.
Each spouse is solely responsible for his or her own debts, and there is no obligation to share or divide mortgages or other debts incurred during the marriage under separate property.
And in the case of community property, joint debts are considered part of the community property and are divided equally between the spouses. If a mortgage was taken out on a jointly owned home during the marriage, both parties will be responsible for it after the divorce.
Business Interests
If spouse A’s business was worth €200,000 at the time of the marriage and €300,000 at the time of the divorce, the €100,000 increase will be shared under the community property regime, so spouse B would be entitled to €50,000.
The business remains the sole property of the spouse who owns it, with no division of the business or its profits in Gütertrennung.
The business is joint property if it was acquired during the marriage and its value is divided equally between the spouses in the Gütergemeinschaft regime.
Tax Implications of Property Division
The division of matrimonial property on divorce in Germany can have different tax implications depending on the type of property and how it is transferred between spouses.
The division of assets on divorce in Germany is usually structured to avoid immediate tax charges, particularly on transfers between spouses. However, future income from transferred assets and maintenance payments may be subject to taxation. The individual circumstances of each spouse after the divorce will affect how taxes are applied to the divided assets.
Before looking at the specific taxes, here is a summary of the main tax implications in several different areas:
Asset Type | Tax Implications |
Real Estate | Transfer between spouses is exempt from capital gains and real estate transfer tax (GrEStG). |
Business Interests | No immediate tax on transfer; future income from the business is taxed normally. |
Investment Portfolios | Tax-neutral transfer; future income (dividends, interest) is taxable to the receiving spouse. |
Pension Rights | No tax on division; pension payments are taxed as income when received. |
Alimony Payments | Deductible for the paying spouse (up to €13,805/year); taxed as income for the receiving spouse. |
Child Support Payments | Not tax-deductible for the payer; not taxed as income for the recipient. |
Personal Property | Transfer of personal property is tax-neutral. |
Capital Gains Tax (Kapitalertragsteuer)
Generally, capital gains tax does not apply to property transfers between spouses during the marriage or as part of a divorce settlement. The Income Tax Act (Einkommensteuergesetz – EStG) stipulates that transfers of property as part of the division of assets in a divorce are usually tax-neutral.
Section 5(2) of the Real Estate Transfer Tax Act (Grunderwerbsteuergesetz – GrEStG) establishes that transfers of real estate between spouses as part of the division of marital property are exempt from real estate transfer tax.
If a family home is transferred from one spouse to the other in a divorce settlement, no capital gains tax or real estate transfer tax will be levied on this transaction.
Real Estate Transfer Tax (Grunderwerbsteuer)
As mentioned above, the transfer of real estate between spouses during marriage or in the context of a divorce is exempt from real estate transfer tax under Section 3(4) of the GrEStG. However, this exemption only applies between spouses. If the property is subsequently sold to a third party, the normal rules for real estate transfer tax apply.
Income Tax (Einkommensteuer)
Divorce-related asset transfers do not usually have any direct income tax consequences. However, any income from certain assets, such as rental income from property, dividends from investments or interest income, will continue to be subject to income tax according to each spouse’s tax bracket after the divorce.
If one spouse transfers an investment portfolio to the other during a divorce, the receiving spouse would be responsible for paying tax on any future income from the investments.
Pension Rights Equalization (Versorgungsausgleich)
The equalisation of pension rights, which divides the pension rights acquired during the marriage, has no tax consequences of its own. However, when the pension benefits are eventually paid out, they will be subject to income tax in the hands of the recipient, based on the standard rules for pension taxation.
Gift and Inheritance Tax (Schenkungssteuer)
Transfers of property between spouses, whether during marriage or as part of a divorce settlement, are generally exempt from gift tax under Section 13 of the German Inheritance and Gift Tax Act (Erbschaftsteuer- und Schenkungsteuergesetz – ErbStG). This exemption applies to the division of assets between spouses or registered partners.
Alimony Payments (Unterhalt)
If one spouse has to pay alimony after a divorce, the paying spouse can deduct up to €13,805 per year in alimony payments from his or her taxable income under Section 10(1a) EStG, provided the receiving spouse agrees to be taxed on the payments.
The receiving spouse must include the alimony payments as taxable income in his or her tax return.
Transfer of Business Interests
When a business or business interests are transferred between spouses during a divorce, the tax treatment depends on whether the transfer is considered a sale or part of the division of property.
If the transfer is regarded as part of the division of matrimonial property, there are usually no immediate tax consequences. Future income or capital gains from the business after the divorce will be taxed according to the normal rules.
Child Support Payments
Unlike alimony, child maintenance payments (Kindesunterhalt) are not tax deductible for the paying spouse and are not taxable income for the receiving spouse. The parent paying maintenance does not receive any tax relief on these payments and the receiving spouse does not declare them as income.
Practical Tips for Managing Property During Divorce
Managing property during a divorce can be complex and requires careful planning to ensure a fair and smooth division.
Below is a list of 10 practical tips from a divorce lawyer in Berlin for managing property during a divorce in Germany. Of course, each case is unique and requires expert advice tailored to your specific needs and situation.
- Know your property regime: Familiarise yourself with the property regime that applies to your marriage, whether it’s Zugewinngemeinschaft (community of accrued gains), Gütertrennung (separation of property), or Gütergemeinschaft (community of property). Each regime has different rules for dividing property, and knowing which one applies is crucial to managing your assets.
- Check prenuptial agreements: If you have a prenuptial or postnuptial agreement (Ehevertrag), check it carefully as it may change the default regime and contain specific provisions about how assets should be divided.
- List all assets and debts: Make a comprehensive list of all assets, including property, bank accounts, business interests, vehicles, investments, pension rights and personal property (jewellery, furniture). Also include any debts, such as mortgages, loans and credit card balances.
- Include hidden or less obvious assets: Don’t forget to include life insurance policies, intellectual property or royalties, which may not be as readily apparent as other types of assets.
- Document ownership and value: Record who owns each asset and its approximate value. For debts, clarify which are joint and which are individual.
- Get professional valuations for high-value items: Hire qualified professionals to provide accurate valuations for real estate, business interests or other high-value assets. Disagreements over the value of assets can lead to disputes, so it is important to have an objective, professional valuation.
- Keep financial records organised: Collect all relevant documents, such as bank statements, investment account statements, property deeds, loan agreements and business ownership records. Clear records will make it easier to assess the division of assets and avoid disputes over missing or incomplete information.
- Understand the tax implications of asset transfers: Asset transfers between spouses during a divorce are generally tax-neutral in Germany, but certain types of assets (such as investment portfolios or business interests) may have future tax consequences, such as on dividends or capital gains.
- Anticipate future needs: Assess what your financial needs will be after the divorce. Consider whether you’ll need liquid assets (such as cash or investments) or long-term assets (such as property or pension rights). It may be beneficial to negotiate for assets that will help you maintain your standard of living.
- Consider selling the marital home: In many divorces, the family home is the most valuable asset. Although it may be emotionally difficult, selling the home and splitting the proceeds may be the most practical solution, especially if maintaining the home would be financially difficult for one spouse.
As a bonus tip, remember not to rush the process. Divorce settlements can have long-lasting financial consequences: take your time to negotiate a fair settlement and make sure you fully understand the implications of any decisions on your long-term financial health. Some assets, such as business interests or property, may increase in value over time. Consider the long-term financial implications of keeping or giving up these assets during the division process.
If communication is possible, try to reach amicable agreements on key issues such as the division of property and debts. This may help to avoid lengthy and costly litigation. Consider using mediation or collaborative divorce methods, such as those offered by a family lawyer in Berlin, to resolve disputes out of court.
Lawyer for Division of Marital Property in Germany
Divorce law in Germany can be complex and professional legal advice is essential to ensure that your rights are protected and that the division of property is fair and legally sound.
Here is how our lawyers at LSI Berlin Law Firm can help you:
- Explain your matrimonial property regime: We will clarify how your marital property regime (Zugewinngemeinschaft, Gütertrennung or community of goods) affects the division of assets and what you are entitled to.
- Review of prenuptial agreements: If you have a prenuptial or postnuptial agreement, your lawyer will review the terms to ensure that they are in line with your interests and comply with German law.
- Preparing an inventory of assets and liabilities: We will help you gather and document all your assets and debts to ensure that nothing is overlooked, such as hidden assets, joint accounts or liabilities.
- Negotiate a fair division of assets: We will negotiate with your spouse or their solicitor to ensure that assets such as property, savings and businesses are divided fairly and in accordance with the law.
- Minimise tax implications: Your lawyer will advise you on the tax implications of the division of property, ensuring that the transfer of assets is done in a tax-efficient manner.
- Mediate disputes: If there is disagreement over the division of property, your lawyer can mediate to reach an amicable settlement, reducing the need for lengthy court proceedings.
- Represent you in court: If an agreement cannot be reached, your solicitor will represent you in family court, arguing for a fair division of property based on your rights.
- Ensuring compliance with court orders: After the divorce, an attorney will help ensure that your spouse complies with property division or alimony orders and, if necessary, enforce the court’s decisions.
Contact LSI Berlin today to plan ahead with a strategic approach to property division or to resolve property disputes with confidence.
* The information on this website is for illustrative purposes only. It does not constitute legal advice and is not a substitute for personal legal advice from a lawyer. Each case is unique, has special circumstances and should be reviewed in detail by a lawyer who is able to review the specific situation.
Get a Fair Share of Your Marital Assets
Divorce often brings uncertainty, especially when it comes to dividing property and other assets accumulated during the marriage. Ensuring that you receive your fair share requires a thorough understanding of German property division laws.
Our legal team specialises in matrimonial property division, helping clients protect their rights and negotiate fair settlements.
Contact us now to ensure you get the support you need to achieve a fair outcome in your divorce proceedings.
Don’t let complex property laws work against you.
Call the Office (M-F: 9am-6pm)
+49 (0)30 88702382
Contact us via email
[email protected]
Contact our office today to discuss how we can assist with your marital property division and protect your financial interests.

Call Us
+49 (0)30 88702382


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Unter den Linden 10, 10117