Introduction to separation of property
Separation of property is a matrimonial property regime that spouses can individually agree upon by means of a marriage contract. In contrast to the statutory matrimonial property regime of community of accrued gains, under separation of property the assets of the spouses remain strictly separated. This means that each spouse remains the sole owner of their assets – both those they owned prior to the marriage and those acquired during the marriage. In the event of divorce or termination of the marriage by death, no equalization of accrued gains occurs. The spouses’ assets are therefore not considered or divided jointly but instead remain fully with each spouse.
The agreement of separation of property is made by means of a notarized marriage contract. Only in this way is the regulation legally effective and protects both spouses from later disputes over assets. Especially for couples where one or both partners already have considerable assets prior to marriage, or wish to build up assets independently during the marriage, separation of property can be a sensible option. It provides clarity and prevents any adjustment for increases in assets acquired during the marriage in the event of a divorce.
Exclusion of accrued gains equalization in entrepreneur marriages
Especially in entrepreneur marriages, a marriage contract can be important for the economic protection of the business. In this context, the marriage contract must not cross the boundary into immorality. The Federal Court of Justice (BGH), in its decision of May 28, 2025, held that the exclusion of the equalization of accrued gains had been validly agreed upon contractually, even though this significantly disadvantaged the wife (Case No. XII ZB 395/24).
In entrepreneur marriages, a marriage contract plays a particularly important role in protecting the business from the financial consequences of a possible divorce. Various agreements can be made in the marriage contract, such as the exclusion of the equalization of accrued gains and regulation of asset equalization. Separation of property must be expressly agreed upon in the marriage contract, thereby providing both spouses with legal certainty. Without such agreements, the statutory matrimonial property regime of community of accrued gains applies, which can be replaced by agreeing to separation of property in the marriage contract. The German Civil Code (BGB) and matrimonial property law form the legal basis for the structure of the marriage contract and regulate the financial relations of the spouses. In addition to separation of property, other property regimes, such as community of property, can also be stipulated in the marriage contract. For entrepreneurs and their families, separation of property offers the advantage of securing the business assets and avoiding disadvantages in the event of separation. This means that, under certain circumstances, business assets or their appreciation in value would need to be compensated for, which could lead to significant economic weakening of the company. To prevent this, it is important to agree on appropriate provisions in the marriage contract, according to the commercial law firm MTR Legal Rechtsanwalt, which also advises on family law.
Equalization of accrued gains excluded in marriage contract
In the case before the BGH, the couple entered into a marriage contract to protect the business, in which separation of property was expressly agreed upon, thus creating legal clarity for both spouses. In addition to separation of property, further arrangements were made in the marriage contract, such as regulations on post-marital maintenance and pension equalization. Without such a contract, the statutory matrimonial property regime of community of accrued gains under the German Civil Code (BGB) would have applied to the spouses, but this can be replaced by the agreement of separation of property. Matrimonial property law and the corresponding articles in the Civil Code form the legal basis for such contracts and allow for individual arrangements. In addition to separation of property, other property regimes, such as community of property, can also be stipulated in the marriage contract. For entrepreneurs and their families, separation of property offers the advantage of securing the business assets and avoiding disadvantages in the event of a separation. The wife was at that time employed as a business economist and GmbH managing director with a gross salary of around €4,200 per month, the husband was involved in the family business. The company’s articles of association required each shareholder to agree to separation of property with their spouse.
When the marriage was dissolved after about ten years, the wife asserted a claim for equalization of accrued gains despite the differing provision in the marriage contract.
BGH: No immorality
Her claim was rejected by the BGH, even at the final instance. The Federal Court of Justice confirmed the view of the Higher Regional Court (OLG) of Stuttgart that separation of property was validly agreed and that the marriage contract was not immoral. The agreements made in the marriage contract are in accordance with statutory regulations, with separation of property being expressly agreed upon. The marriage contract was structured according to the provisions of the German Civil Code (BGB) and matrimonial property law, with the statutory property regime being replaced by the contractual rule. Although the marriage contract leads to a one-sided distribution of assets to the disadvantage of the woman, according to the judges in Karlsruhe, the contract is nevertheless not immoral. The advantages of separation of property, especially for economically independent spouses and their families, lie primarily in avoiding disadvantages in the event of a separation. In addition to separation of property, the marriage contract may also provide for other property regimes such as community of accrued gains or community of property.
Decisive factors were that the wife was economically independent, well-educated, and, at the time the contract was signed, fully capable of conducting business intellectually. In addition, she was able to rely on legal advice from her father, a notary and lawyer. There was also no situation of pressure or coercion affecting the woman that was exploited when concluding the marriage contract. Rather, the woman was economically independent and was not financially dependent on the marriage, according to the BGH. Even after stepping down as managing director of a GmbH, she still had good prospects of comparable employment due to her qualifications. Moreover, she was contractually well provided for with monthly financial payments in the event of a divorce. There were also no signs that the woman was taken by surprise by the marriage contract, according to the BGH.
Protection of business assets is a legitimate interest
Furthermore, in entrepreneur marriages, the protection of business assets is a recognized legitimate interest. The exclusion of accrued gains equalization and agreement on separation of property in the marriage contract provide legal certainty for both spouses. The structure of the marriage contract is in accordance with the provisions of the German Civil Code (BGB) and matrimonial property law; in the absence of other agreements, the statutory community of accrued gains applies. In addition to separation of property, other property regimes such as community of accrued gains or community of property can also be regulated in the marriage contract. Separation of property offers entrepreneurs and their families the particular advantage of securing the business assets and avoiding disadvantages in the event of separation. The exclusion of the equalization of accrued gains serves here to ensure the continuity of the company, as the BGH further stated.
Despite this decision, a contractually agreed exclusion of accrued gains equalization or other provisions in a marriage contract may be immoral. A marriage contract is deemed immoral if, at the time it was concluded, it contains an obviously unreasonable and one-sided allocation of burdens and this is accompanied by an imbalanced negotiating position or exploitation of a situation of duress. This can be the case, for example, if one partner is financially or socially significantly weaker, there is a clear relationship of dependence or pressure, any compensatory mechanisms are lacking despite one-sided disadvantage, or one party was simply taken by surprise by the marriage contract. In such cases, the marriage contract may be declared void.
Tax implications of separation of property
Choosing separation of property within the framework of a marriage contract not only impacts the assets of the spouses in the event of divorce, but also has tax implications that should be carefully considered. Unlike the community of accrued gains, separation of property eliminates the equalization of accrued gains, which is exempt from inheritance tax and usually applies on death or divorce. This can, in particular, lead to tax disadvantages when, in the case of inheritance, assets are transferred that exceed the spouse’s tax exemption of €500,000. In such cases, a higher tax burden may arise than would be the case under the community of accrued gains.
It should also be noted that the choice of property regime can have inheritance and family law consequences. Separation of property is not the best solution in every case. In some circumstances, a modified community of accrued gains may be more appropriate. This allows the exclusion of the equalization of accrued gains in the event of divorce, but its retention upon the death of a spouse – which can secure tax advantages.
Before agreeing to separation of property in a marriage contract, it is therefore advisable to seek comprehensive advice. An experienced lawyer or tax advisor can help analyze the individual asset situation and assess the tax and legal implications of the various property regimes. This ensures that the chosen property regime is optimally tailored to the personal and financial needs of the spouses and that no unwanted disadvantages arise. In Germany, separation of property is a recognized property regime that can be agreed before or after marriage by means of a notarized marriage contract. Careful planning and advice are therefore essential to keep all consequences for assets, taxes, and inheritance law in view.
Structuring a marriage contract with legal certainty
In contrast, in the case at hand the BGH recognized freedom of contract in entrepreneur marriages. Even in cases of objective inequality, the mere will of both parties to enter into the consequences of the contract in full awareness of its implications is sufficient for validity. Such a marriage contract is not immoral as long as there are no subjective disadvantages and legitimate interests such as the protection of business assets are clearly evident.
Various agreements can be made in the marriage contract, such as the exclusion of accrued gains equalization, the regulation of asset equalization, or the agreement of separation of property. The structure of the marriage contract is in accordance with the provisions of the German Civil Code (BGB) and matrimonial property law. Along with separation of property, other property regimes such as community of accrued gains or community of property can also be stipulated in the marriage contract. The benefit of separation of property, especially for entrepreneurs and their families, lies primarily in securing business assets and avoiding disadvantages in the event of a separation of the spouses.
Especially in entrepreneur marriages, a tailored marriage contract can support the economic stability of the business and preserve jobs.
MTR Legal Rechtsanwalt advises on marriage contracts and other topics in the area of family law. If you have any questions or require further information, please feel free to contact us by email or via our contact form.
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