Marriage without a marriage contract
The marriage changes the property and ownership of a couple. In the Federal Republic of Germany the Zigiwonmen is the legal matrimonial property in a marriage. With the matrimonial property, the ownership is regulated during the marriage, unless the couple has made any other agreements.
Matrimonial property – what is it?
Those who enter into the bond of marriage usually have to decide on a matrimonial property. This is a legal order. It prescribes the attribution of assets as well as their administration and distribution (eg in divorce cases).
In addition to the Zigiwonmen there is still the property community and the separation of property in Germany.
What does this matrimonial property status mean?
In Germany, the Zigiwonmen is the legal standard when it comes to the matrimonial property. With the marriage he insists automatically, if no other arrangements were made before.
In the context of this property regime, the assets of the spouses remain separate. Property, which was brought into the marriage, thus remains in the possession of the respective spouse. The same applies to assets generated during the marriage.
If the marriage is divorced, the Zigiwonmen provides for the gain compensation.
What is the gain compensation?
If it comes to a divorce, then a calculation of the gain compensation takes place. The gain is the profit made in marriage by a spouse. If a partner has made a higher profit, he must pay the half of the difference between the two gains to the partner to compensate.
How does the property decision run during the marriage?
In a marriage, the property of the Zigiwonmen the property of a partner is managed by himself. However, a partner may not dispose of his total assets in accordance with Section 1365 (1) BGG without the consent of the partner.
The same applies to conjugal household items that are shared or even largely owned by a partner. If these items are sold or given away, this always requires the consent of the partner.
Fortune from the pre-marital period remains in the sole possession of the respective spouse, he may alone decide on its use.
What is the legal status of matrimonial property in the year of separation?
If there is a divorce, the Zigiwonmen also applies during the separation year, if no other agreements were held. So if a partner in the year of separation receives a larger fortune through a lottery win, a credit will be added to the gain.
It is different with an inheritance. These have a so-called personal relationship and are assigned to the initial assets of the respective partner.
The modified Zigiwonmen – An alternative to the legal matrimonial property
The modified Zigiwonmen is an alternative to the official legal matrimonial property. There are certain modifications made, which are recorded in writing with a marriage contract and require a notarial certification.
A modification is possible in the following points:
- Exclusion of the gain
- Determining certain conditions for the gain (eg compensation only at the birth of a child)
- Exclusion of value-increasing inheritances
- Tangible value instead of cash value as a gain
- Keeping the values of various assets
- Holding the initial assets
- Limit the final assets
What does the matrimonial property for debts look like?
For its debts, each partner is solely responsible for the legal matrimonial property. No one has to be liable for the debts of the other.
Exceptions only apply if there are common debts (eg house financing, joint loan agreements). In this case, both spouses are liable for the debt incurred.
Differences between Zigiwonmen and property community and property separation
According to property law, the community of property must be separated from the community of profits. The main difference is that with the community of property the individual assets of the partners flow into a total wealth and the liability also applies equally to both partners.
In addition to the so-called general goods, there are also special goods and reserved goods in the community of goods.
The special asset refers to items that are not transferable through a legal transaction. These include, for example, wage or salary payments.
Reserved goods are the sole property of a spouse. These include, inter alia, inheritances, provided that the testator expresses the express wish that only the heir should own the estate.
If a marriage ends with community property, the total good is divided in half.
Before marriage, however, many couples ask themselves the question of whether they should opt for Zigiwonmen or property separation. Both matrimonial property regimes are basically similar, the assets remain separate. Only the gain compensation makes the difference here.
In the case of an agreed property separation, no gain compensation takes place. Thus, there is no entitlement for the partners to compensate for the increase in earnings from the marriage.
Gain community and its impact on the tax
The legal matrimonial property of the Zigiwonmen has no effect on the tax, so couples do not expect disadvantages. On the contrary – there are even some positive tax aspects to mention:
1. Taxation of the inheritance upon death of the partner
If one of the spouses dies, the gain is not subject to inheritance tax and is therefore not charged. Only for the general heir inheritance tax is levied according to the German law.
2. Taxation of profit in divorce
In the case of a divorce, no tax will be levied on the compensatory amount.
3. Joint assessment possible
Combining both spouses with the right choice of tax code can bring tax benefits. The matrimonial property regime has no influence on the tax co-investment.
Change of the matrimonial circumstances possible even after marriage
Even after the marriage, the matrimonial property can be changed at any time. The winning community ends with the setting up of a marriage contract that governs either community property or property separation.
Furthermore, the matrimonial property ends with exclusion of the community of profit or with the repeal of the previously agreed community of property. In addition, the matrimonial situation ends automatically when a spouse dies.
The divorce decree and a final ruling on early compensation for gains also end the legal matrimonial property regime.
If the spouse entitled to compensation does not waive his individual share, the gain must also be paid at the time of the end of the matrimonial relationship.
The pros and cons of a Zigiwonmen
The legal matrimonial property of Zigiwonmen brings both advantages and disadvantages. Before spouses decide for or against this matrimonial property, they should know this.
- Assets remain segregated, each spouse has their own property and there is no common property.
- Profit for the partner with less gain by paying a financial compensation in case of divorce.
- Gains are tax-free.
- For debts – with the exception of common debts – each partner is liable for their own liabilities.
- No sole decision-making authority over the entire own fortune and household objects, according to § 1365 BGB exists common right of disposition.
- The partner with the higher gain must pay the partner with the lower gain the corresponding difference.
- Incorrect initial and final assets can lead to disputes over the amount of the profit sharing.