Concept and significance of exclusion of pension rights adjustment
The exclusion of pension rights adjustment is a term in German family law and refers to the circumstance where, upon divorce, the generally intended internal and external division of pension entitlements acquired during the marriage (e.g., from statutory pension insurance, civil service pensions, occupational pensions, or private pension insurance) does not take place, in whole or in part. The pension rights adjustment is governed by law under the Pension Rights Adjustment Act (VersAusglG) and serves the equal distribution of pension entitlements and disability coverage acquired by spouses during the marriage. An exclusion can occur by decision of the family court or based on valid agreements between the spouses.
Legal basis for exclusion of pension rights adjustment
Statutory Foundations
In principle, the pension rights adjustment must be carried out ex officio in every divorce (§ 1569 BGB, § 8 VersAusglG). The statutory provisions concerning exclusion or modification are found primarily in §§ 6 to 8, 27 to 29 VersAusglG as well as in the German Civil Code (BGB). The possibilities for exclusion essentially arise from two areas: through agreement of the spouses and through unilateral court decision.
Exclusion by spousal agreement
Requirements
According to § 6 para. 1 VersAusglG, spouses may exclude, modify, or exempt individual pensions from the pension rights adjustment by notarized agreement. The agreement can be made before or during the marriage, as well as until the divorce proceedings are legally concluded. Such an agreement requires court review in the context of the divorce (§ 8 VersAusglG). The court examines whether the agreement is compatible in terms of content, timing, and formation with fundamental concepts of fairness (so-called validity control).
Content and Exercise Review
In the context of content review, the court examines whether there is an evident one-sided disadvantage. The agreement may be invalid if it unreasonably disadvantages one partner or is immoral within the meaning of § 138 BGB. In particular, if there are existing pension disadvantages, unequal marriage circumstances, or significant need for protection by one spouse, the court can intervene and deny the exclusion.
Exclusion by judicial decision
Hardship clause (§ 27 VersAusglG)
According to § 27 VersAusglG, the family court may partially or entirely refrain from a pension rights adjustment if it appears grossly unfair. This is an exceptional clause for cases in which conducting the adjustment in the individual case would seriously offend a sense of justice (e.g., in cases of serious misconduct by one spouse, very short marriage duration, or egregious breaches). Typical cases include, for example, a short marriage duration of less than three years (§ 3 para. 3 VersAusglG in conjunction with § 27 VersAusglG) or the absence of marriage-related pension disadvantages.
No pension rights adjustment in case of short marriage duration (§ 3 para. 3 VersAusglG)
Section 3 para. 3 VersAusglG provides that the pension rights adjustment for marriages with a marriage duration of less than three years is only conducted upon application by a party. If no such application is made, the pension rights adjustment remains excluded.
Limitation and exclusion for foreign entitlements (§ 2 VersAusglG)
For pension entitlements acquired abroad, exclusion can also occur—for example, because transfer or division is not possible or would involve disproportionate difficulties. The court has discretion in this respect and can, if necessary, exclude individual entitlements from adjustment.
Grounds for exclusion and typical case constellations
Immorality and gross unfairness
A complete exclusion is particularly inadmissible if the agreement or decision is morally objectionable; for instance, if the pension rights adjustment is used as leverage or abused in circumvention of statutory minimum protection. The permissible limit is also reached in cases of economic extremes or if one spouse needs protection.
Foreign law and international contexts
In binational marriages or where there is a foreign element, foreign law can influence the pension rights adjustment and its exclusion. In some cases, the adjustment is excluded if foreign law does not provide for such or its implementation in Germany appears unreasonable. The relevant provisions are found in private international law, in particular Art. 17 paras. 3 and 4 EGBGB.
Re-exception: Pension rights adjustment despite exclusion
An exclusion is at the discretion of the court in individual cases, for instance, if the exclusion would result in considerable disadvantage to one spouse and this is inconsistent with the principles of good faith (§ 242 BGB). Therefore, a complete waiver is ineffective in exceptional cases if the other spouse would otherwise be impoverished.
Procedure for exclusion of pension rights adjustment
Duty to cooperate
Both spouses must provide comprehensive information about their pension entitlements and any agreements or waiver declarations (§ 220 FamFG). Failure to cooperate can affect the court’s decision regarding exclusion.
Examination and definiteness
Before establishing an exclusion, the court reviews whether the agreement is effective, sufficiently definite, and not requiring supplementation. Vague, incomplete, or merely oral agreements are not sufficient.
Legal consequences of exclusion of pension rights adjustment
Effects on retirement provision
The exclusion results in the pension entitlements acquired during the marriage not being divided. Each spouse retains their own entitlements; no adjustment takes place. This can result in pension gaps, especially for spouses who provided care or are economically weaker.
Impact on other family law claims
The exclusion of pension rights adjustment has no direct impact on other family law claims such as equalization of accrued gains or maintenance. However, it may have factual effects, as retirement provision is relevant for the calculation of post-marital spousal maintenance.
Consequences under social law
An exclusion may also affect potential claims against social security agencies, such as with respect to the basic pension.
Summary
The exclusion of pension rights adjustment is a significant option in German divorce law. It may occur by agreement between spouses or by court decision, and is subject to strict legal requirements and protection mechanisms to balance marriage-related disadvantages. Legally secure structuring and implementation require consideration of many statutory requirements, especially to ensure minimum protection and to avoid disadvantages. Whether and to what extent an exclusion is possible always depends on the specific circumstances of the individual case.
Frequently asked questions
What are the form requirements for excluding pension rights adjustment?
Pension rights adjustment may only be excluded by explicit agreement of the spouses, whereby the formal requirements of § 8 para. 2 VersAusglG and § 1414 BGB must be strictly observed. This means the agreement must either be notarized or recorded in court. A privately written agreement is invalid. Notarization primarily serves to protect both spouses by informing them of the far-reaching legal and economic consequences of the exclusion. Furthermore, the agreement must be submitted to the family court in the divorce proceedings, for it to be reviewed for validity as to content and implementation in accordance with § 8 para. 1 VersAusglG. Compliance with the form requirements is a prerequisite for validity; a defect in form renders the exclusion agreement void.
Under what circumstances will the court approve exclusion of pension rights adjustment?
The family court reviews ex officio under § 8 VersAusglG whether the agreement is permissible, particularly with regard to immorality (§ 138 BGB) or unreasonable disadvantage to one spouse (§ 242 BGB). Judicial exclusion is not approvable if it jeopardizes the existential protection of one spouse or a structural imbalance exists due to one-sided disadvantage. In the review, factors such as the specific course of the marriage, the pension situation of both parties, possible representation at the time of agreement, regional and temporal context, and the spouses’ economic and social circumstances are taken into account. If, at the time of the agreement, there is evident one-sided exploitation, the family court can refuse approval. Exclusion agreed upon under coercion, deception, or in an exceptional emotional situation is likewise invalid.
Can exclusion of pension rights adjustment be challenged afterwards?
An already agreed exclusion of pension rights adjustment can be contested at a later date, especially if at the time of agreement there was error, deceit, or duress (§ 123 BGB). Beyond this, the family court may declare the agreement invalid if significant changes in circumstances have occurred (principle of disturbance of the basis of the transaction, § 313 BGB), such as if one spouse, due to illness or inability to work, is existentially dependent on pension entitlements. The challenge must generally be made promptly after becoming aware of the ground for challenge. If successful, the pension rights adjustment will be conducted according to statutory provisions.
Is full exclusion or only partial exclusion of pension rights adjustment possible?
The spouses can either completely or partially exclude the pension rights adjustment. A partial exclusion can pertain to individual entitlements, certain periods, or maximum amounts. It is also possible to exclude only particular pension rights adjustment claims (e.g., statutory pension insurance, occupational pensions, private pension insurance). Partial exclusions may be reasonable to, for example, disregard individually acquired pension entitlements outside the marriage, while balancing entitlements accumulated during the marriage. However, it is necessary to clearly and unambiguously formulate the exclusion to avoid legal uncertainties during divorce proceedings.
What effect does exclusion of pension rights adjustment have on survivor protection?
An effective agreement to exclude pension rights adjustment generally only applies to the pension adjustment claims acquired during the marriage between the spouses. Benefits for survivors—such as a survivor’s pension upon the death of a spouse—remain unaffected, provided the relevant entitlement requirements are met and a corresponding claim exists in the insurance or pension system. However, it is not possible to specifically regulate survivor protection between the spouses within an exclusion agreement; this must be settled separately, for instance by revoking beneficiary designations or amending insurance contracts.
Can an agreement already made to exclude pension rights adjustment be changed during divorce proceedings?
In principle, during ongoing divorce proceedings, it is possible to amend or revoke the already agreed exclusion of pension rights adjustment, provided both spouses agree and the change observes the necessary formal requirements (notarization or court recording). Every change (including complete withdrawal) again requires judicial review for immorality and unreasonableness under § 8 VersAusglG. Once the divorce is final and the pension rights adjustment procedure is concluded, changes are generally no longer possible, unless there are exceptional circumstances warranting a subsequent modification.
