Matrimonial regime

The property law regulates in marriages and other state- registered communities ( in Germany partnerships ) the question of whether assets the spouse or life partners are attributed singly or jointly and whether and how in the case of separation, the common wealth, and achieved gains are distributed. For this offer, the legal systems of matrimonial property regimes, where there are regularly a statutory basic model ( the statutory matrimonial property regime ) and so-called matrimonial choice.

Any natural person is basically the sole owner of its assets. It may, when unlimited capacity exists, with their property procedures to the laws at will, anyone taken in by the exposure to the same rule ( § 903 BGB) and any capital gains. However, requires the common living ( bed and board ) and economies within a marriage property law solutions, which are the common purpose of pursuing justice in a marriage.

International cargo floor models

Law can be systematically and according to international ( German ) historical practice in the order of ascending pooling in particular distinguish the following basic types

• The separation of property,
• The Nutzverwaltung ( before male administration and usufruct on introduced the Good Wife )
• The community of surplus (goods prior participation in the gain ),
• Matrimonial property with community property the achievement of community
• Fahrni the Community
• The exclusion Community (certain assets are excluded from the community property ),
• The general community property.

The matrimonial property regime is established by marriage (or partnering ) and dissolved by divorce or death of a spouse and explained. In a concubinage no separate property regime is established. This does not affect the possibility of a fraction of community created through the acquisition of objects with common resources (for example, household goods, land, condominiums ). The couple can choose through marriage contract under different statutory matrimonial property regime. The matrimonial property regime, which comes in the absence of a consensual contract shall apply, ie legal rules in ( Zugewinngemeinschaft ).

Legal situation in Germany

Applicability of German law

Are the spouses German, contact German courts and authorities to German law.

For foreigners must be distinguished:

Are you or have at marriage both spouses are foreign nationals who belong to the same state, refer to the property law in Germany the regulations of their home country (art. 15, paragraph 1 BGB in conjunction with Article 14 Paragraph 1 No. 1 BGB ). If only one spouse foreigners include both foreign spouses of different States, or the spouse or other asylum seekers Convention refugees, the right of property regime (Art. determined by the law of their common habitual stay 15 paragraph 1 BGB in conjunction with Article 14 para .1 No.2 BGB ), in the absence of a common place of residence by the law of the State with which the spouses are most closely related in some other way (Article 15, paragraph 1 BGB in conjunction with Article 14 paragraph 1 No. 3 BGB ).

The spouses may, however, by the marriage contract also choose the property law of the State which one of them belongs, or the property law of the State in which one of them has his habitual residence. For plots they can also choose the law of the situs; However, this leads to a legal division of the matrimonial property.

The choice has to be made domestically in notarised form. If they made ​​abroad, there usual form shall prevail.

German matrimonial and legal rules in the

The German property law distinguishes between the matrimonial property regime of community of accrued gains, the separation of property and the community property since the Equality Act 1957. If there is no marriage contract, the statutory matrimonial property regime of community of surplus applies.

Between 1900 and 1953, the property regimes of Nutzverwaltung, separation of property, the community property, the Fahrni Community and the achievement of community were provided. Legal marital property was the Nutzverwaltung. From 1966 to 1990 was in the GDR, the statutory matrimonial property regime of community achievement; here was (§ § 13 ff FGB GDR ) during the marriage assets acquired community property.

Until 1900 were in Germany over 100 different property rights, which were attributable to the following five systems in the main:

• Before male administration and usufruct (also Nutzverwaltung or administrative community called ) with about 16 million people
• Community property with approximately 14 million people.
• Achievement community with approximately 10 million people.
• Fahrni community with approximately 9 million people.
• Dotalsystem with about 3 million people.

With effect from 1 September 2009, the marital community of accrued gains was reformed, but not fundamentally changed. It is since the Act amending the gain compensation and guardianship law of 6 July 2009, which is published on 10 July 2009 in the Federal Law Gazette I No. 39 on the side in 1696. This result on the property law further changes to the definition of the power balance in the company pension plan.

On 2 February 2011, the Federal Cabinet decided the government draft for the implementation of another matrimonial property, the Franco-German election matrimonial.

Legal situation in Austria

The Austrian property law distinguishes between the matrimonial property regime of community of accrued gains, the separate property or community property since 1957. If there is no marriage contract, the statutory matrimonial property regime of separation of property shall apply. Between 1900 and 1953, the property regimes of the administrative community ( Nutzverwaltung ), separation of property, the community property, the Fahrni Community and the achievement of community were provided. Legal marital property was the administrative community.

Legal situation in Switzerland

The matrimonial property determines what during the marriage belongs to whom, and it governs the division of property after death. It thus provides the basis for a subsequent inheritance dispute.

There are basically three property regimes:

• Participation in acquired (ordinary matrimonial ) Article 196 et seq of the Civil Code
• Community of goods Article 221 et seq of the Civil Code general community of property
• Achievement Community
• Exclusion Community

The achievement participation ( = German Zugewinngemeinschaft ) includes personal property and achievement, which are included in the resolution. The personal property includes property items that were already present before the marriage or have been added in the form of personal gifts or inheritance during the marriage. Also to own property include personal items. The achievement includes all other elements of capital, especially those that have been incurred in the form of capital and labor income during the marriage and was not consumed by the daily expenses incurred. The income from the management of own property also fall into the achievement.

When community property is set in a marriage contract, that makes for personal property and what is not. So this is not legally defined. Everything else falls into the so-called common property. In this form, so everyone still bears the responsibility for his fortune. On the death, the total transmission of the common property is usually provided. In cases of divorce, separation, marriage annulment or transfer to the separate property of each spouse from joint property takes back what was his own property under the ownership of acquired property.

When separation of property in the marriage contract, a clear separation of assets between husband and wife is also enshrined in the event of dissolution of the marriage. This is useful if you want to protect inheritance rights of heirs of a first marriage. A separation of property may also be useful in the formation of a company by a person. So the other person can protect their assets from the creditors of the first person.