Definition and Legal Classification: Initial Assets
The initial assets (Anfangsvermögen) is a central concept in German family law and plays a significant role in connection with the marital property regime of the community of accrued gains pursuant to Sections 1363 et seq. of the German Civil Code (BGB). It refers to the value of the assets that a spouse possesses at the time the community of accrued gains begins. The initial assets serve as a reference point for calculating the so-called accrued gains in the event the marital property regime ends, for instance through divorce, the death of a spouse, or a change of property regime.
Statutory Regulation of Initial Assets
The initial assets are governed by Section 1374 BGB. This section defines what is included in the initial assets and how it is to be determined.
Definition and Delimitation of Initial Assets
According to Section 1374 (1) BGB, the initial assets comprise the assets of a spouse minus any liabilities existing at that time, on the day of the marriage, or in the case of a later agreement on the property regime, on the day it comes into effect. The relevant point is always when the community of accrued gains begins.
The following aspects are considered in the assessment:
- Assets: Cash assets, real estate, securities, movable property such as vehicles or jewelry, as well as other items of value.
- Liabilities: Debts and other obligations existing at the relevant date.
The initial assets can be either positive or, in cases of over-indebtedness, negative (so-called negative initial assets).
Special Features: Privileged Initial Assets
Section 1374 (2) BGB extends the initial assets to include so-called ‘privileged initial assets.’ These are assets acquired by a spouse after the start of the marital property regime either through inheritance, legacy, or as a gift from a third party. Such assets are added to the initial assets to exclude them from the gains accrued during the marriage. The condition is that they must still be in the spouse’s possession at the time the property regime ends.
Example: Privileged Initial Assets
If a wife inherits a property during the marriage and later sells it before the community of accrued gains ends, the proceeds from the sale are added to the initial assets, provided the money is still available.
Determination and Valuation of Initial Assets
Time of Valuation
The time for valuing the initial assets is the beginning of the community of accrued gains:
- This is usually the day of the marriage.
- If the community of accrued gains starts at a later date due to a marriage contract, that day is the relevant date.
Valuation of Assets
The initial assets are generally valued at the fair market value (market value) of each item at the relevant point in time. The following principles apply:
- Real estate is valued at market value, taking current market conditions into account.
- Securities and bank deposits are valued at their current price/balance.
- Shareholdings in businesses or company interests are estimated using available expert reports.
Valuation of Foreign Assets
If foreign assets exist, they are also taken into account, applying applicable foreign law and the relevant market value.
Burden of Proof and Obligation to Provide Evidence
Under family law rules, the burden of proof for the initial assets lies with the spouse who claims a specific amount of initial assets. Detailed substantiation, such as bank statements, appraisal reports, or official deeds, must be provided. If the initial assets cannot be proven, the presumption is that there were no initial assets at the start of the community of accrued gains (§ 1377 BGB).
Proof Issues and Burden of Proof Distribution
A reversal of the burden of proof may occur if the other spouse asserts the opposite. Any remaining doubts are to the detriment of the spouse with the burden of proof.
Legal Function of Initial Assets in the Accrued Gains Calculation
The initial assets, together with the final assets, form the basis for determining each spouse’s accrued gains:
- Initial assets: Assets at the time of marriage (minus liabilities)
- Final assets: Assets at the end of the marital property regime (minus liabilities)
- Accrued gains: Difference between final assets and initial assets (§ 1373 BGB)
As part of the division of assets, the accrued gains are allocated between the spouses. The initial assets ensure that only increases in assets achieved during the community of accrued gains are subject to the accrued gains equalization.
Protection of Personal Gifts Through Initial Assets
By adding inheritances and gifts to the initial assets, the legislation protects a spouse’s personal acquisitions from being included in the accrued gains equalization. The purpose is to exclude gratuitously acquired personal assets, which are not the result of joint efforts during marriage, from the accrued gains calculation.
Enforcement in Court and Contested Issues
Claims relating to initial assets are enforced through the accrued gains equalization procedure before the courts. Typical areas of dispute include:
- The correct valuation of assets
- The evidencing of initial assets or privileged initial assets
- The issue of subrogation (replacement of assets with money from gifts or inheritances)
Courts frequently appoint experts to determine values and decide the amount of initial assets within the investigation ex officio.
Exclusion and Modifications of Initial Assets
By marital contract, spouses can deviate from the statutory property regime or agree on their own provisions concerning initial assets, provided such agreements do not contravene legal requirements or good morals.
Summary
Initial assets are a key concept in German family law for the community of accrued gains property regime. They comprise the assets owned by a spouse at the start of the community, including particular gifts received during marriage. Precise determination and valuation are crucial for fair accrued gains equalization and provide legal certainty for the division of property when the property regime is dissolved. The statutory provisions on initial assets ensure a fair settlement and protection of personal acquisitions during marriage.
Frequently Asked Questions
How are initial assets legally determined for accrued gains equalization?
In the context of accrued gains equalization under German family law, the initial assets of each spouse are the assets they own on the day of the marriage. For the determination of initial assets pursuant to Section 1374 BGB, positive assets such as real estate, bank balances, or securities as well as debts and other liabilities must be considered. Each spouse is legally obliged to disclose and evidence their initial assets with appropriate documents, such as bank statements, land register extracts, or proof of debts. Difficulties often arise from missing or incomplete documentation, especially in long marriages, which is why the legislature allows for estimation according to Section 287 ZPO in such cases. It is important to note that assets not accounted for cannot be claimed later in the event of separation, which is why complete documentation at the time of marriage is highly recommended.
What special legal rules apply to initial assets in cases of inheritance or gifts?
Inheritances and gifts received by a spouse during the marriage are added to the initial assets pursuant to Section 1374 (2) BGB—regardless of when such benefits are received. The purpose of this rule is to exclude these increases from accrued gains equalization so they benefit only the recipient spouse. However, it is necessary to prove the receipt and value of the inheritance or gift with legal certainty. The values are conceptually assigned as a notional contribution as of the date of marriage; an actual retroactive transfer is not required. Gifts between spouses are not included, as these are regularly subject to accrued gains.
How are debts legally accounted for in the initial assets?
Debts are fully taken into account in the initial assets, so negative initial assets are possible. The legal requirement is proof that these liabilities actually existed on the day of the marriage. Written documentation, such as loan agreements, account statements, or debtor certificates, is necessary. If negative initial assets are determined, then the right to equalization only arises when the final assets not only exceed the debts but also show a net gain. Special attention must be paid to the fact that reductions in debt after the marriage are already considered part of the accrued gains and do not retroactively increase the initial assets.
What rules of evidence apply in proving initial assets?
Each spouse generally bears the burden of proof for the composition and value of their own initial assets. If a spouse cannot sufficiently prove this, their initial assets are set to zero under Section 1377 BGB—a so-called zero basis. Proof is provided by submitting appropriate documents such as bank or deposit statements, official deeds, or witness testimony. The courts require traceable documentation; mere assertions are insufficient. In case of dispute, the family court may estimate the value, and the estimate should generally favor the spouse bearing the burden of proof if indications suggest assets exist.
What are the legal consequences of incorrectly stated initial assets in divorce proceedings?
Providing incorrect or intentionally false information regarding initial assets can result in significant legal disadvantages. If the court determines during divorce proceedings that a spouse has overstated or understated their initial assets, this may lead to a recalculation of the accrued gains claim. In cases of intentional deception, criminal consequences for fraud or false statutory declaration are possible. In addition, the disadvantaged spouse may assert civil claims for damages. In extreme cases, the family court may correct already settled equalization payments retrospectively and order repayments.
How are jointly owned assets legally evaluated as part of the initial assets?
If the spouses share ownership at the time of marriage, such as joint accounts or co-ownership of property, these assets are included in each spouse’s initial assets according to their share. The legal basis is the respective fractional ownership, which depends on ownership shares (for example, 1/2 or 1/3). If ownership is unclear, allocation is based on indicators such as deposits or contract participation. In case of dispute, each spouse must legally prove their proportion of co-ownership. Otherwise, the court may estimate or presume an equal split. Wrongfully attributing a jointly owned asset entirely to one spouse is legally inadmissible.
Under what circumstances can initial assets be adjusted retrospectively?
A retrospective adjustment of the initial assets is only legally possible under certain conditions. If it is subsequently determined that an asset was overlooked or valued incorrectly at the time it was first determined, a correction can be made, provided the matter is not already legally settled. After a divorce settlement or judgment becomes final, a subsequent adjustment is generally excluded unless there is fraud, deceit, or gross misconduct (§ 138 BGB). In such exceptional cases, a challenge or a motion for retrial may force a reassessment of initial assets. However, a mere change in the actual asset situation after the marriage does not affect the valuation of the initial assets.
