Gifts and Donations in Marriage and Divorce in Germany

According to Section 516 (1) of the German Civil Code (BGB), a gift is a donation by which someone enriches another person from their assets. This gift is made free of charge. A distinction must be made between classic gifts and gratuitous gifts between spouses. This is because it is assumed that these marriage-related or unnamed gifts are made for the sake of the marriage. The gift serves the marital community and is made in the trust that the marriage will continue. Whether this is a classic gift within the meaning of Section 516 (1) BGB or a gratuitous gift between spouses depends on the individual case. A clear distinction is crucial in divorce cases. The decisive factor here is the purpose or motivation of the gratuitous gift in the individual case. For example, wedding gifts are given for the sake of the marriage, whereas baby gifts are for the (future) child and, therefore, do not constitute gratuitous gifts between spouses.

One of the legal challenges in the event of a divorce is the question of the division of joint assets. If the couple lives under the statutory matrimonial property regime of the community of accrued gains, the assets are equalised in the event of the marriage ending (see Sections 1371 et seq. BGB). This refers to any assets acquired during the marriage, i.e. the amount by which the final assets of one spouse exceed the initial assets (see Section 1373 BGB). Regarding gifts made or received during the marriage, the question arises as to whether they will be included in the joint assets and how they will be dealt with when the marriage ends. According to Section 1374 para. 2 BGB, assets that a spouse acquires as gifts are added to the initial assets, so they do not have to be equalised. However, this only applies to gifts that can only be attributed to one spouse alone. The situation is different for gifts categorised as free gifts (gratuitous gifts) between spouses. In such cases, equalisation can even take place over and above the equalisation of accrued gains. This is possible if the statutory provisions on property law lead to a distribution of assets that proves to be unreasonable. Whether and how equalisation takes place depends on the individual case and is determined based on specific criteria (e.g. duration of the marriage, financial circumstances, etc.).

However, due to the legal text being open to interpretation (see Section 1374 (2) BGB), court proceedings repeatedly arise in which the positions of gratuitous gifts are disputed. The lawyers at Schlun & Elseven Rechtsanwälte will be happy to explain in which cases an equalisation of accrued gains takes place, and under which circumstances the gift is not considered. Please contact our German family law practice group today.

Since only one party (the donor) makes a gift, the gift agreement is a unilaterally binding contract. The donor loses all rights to the item previously owned by him. Nevertheless, it is possible to reclaim the gift – only in exceptional cases. While a claim for the return of gifts in the event of the dissolution of a betrothal is standardised in Section 1301 of the German Civil Code, there are no such specific legal regulations in the event of a divorce. If no separate provisions on the division of assets in the event of a divorce have been stipulated in the prenuptial agreement, the statutory provisions on equalisation of assets (equalisation of gains and equalisation of pensions) apply. In certain exceptional cases, case law nevertheless allows the gift to be reclaimed:

• Non-fulfilment of the condition under Section 527 (1) BGB: According to Section 525 (1) BGB, a gift can be made subject to conditions. If the donor has fulfilled the conditions, the donor can demand their fulfilment. However, if the condition is not met, the donor can demand the return of the gift to the extent that the gift should have been used to fulfil the condition (see Section 527 (1) BGB).
• Impoverishment of the donor under Section 528 para. 1 sentence 1 BGB: If the donor can no longer provide for their reasonable maintenance after the gift of a property and to fulfil their legal maintenance obligations towards others, they can demand the return of the gift from the donor following the standard mentioned above. However, this claim for restitution may also be excluded.
• Ingratitude: Under Section 530 (1) BGB, the gift can be revoked if the donee (receiver) is guilty of appalling ingratitude by committing a serious offence against the donor or a close relative. A distinction must be made between the ingratitude and the behaviour of the donee. While the ingratitude can only be directed against the donor, it is sufficient regarding the behaviour of the donee if this is directed against the donor or their close relatives. Reasons for cancellation are then, for example, serious insults or physical abuse. Intentional behaviour that is morally reproachable is therefore required.
• Disruption of the basis of the contract (Section 313 BGB): If neither a statutory (see above) nor a contractually agreed claim for restitution at the time of the gift applies, the provision on interference with the basis of the transaction could become relevant. The basis of the transaction within Section 313 BGB includes circumstances that form the basis of the gift agreement according to the parties’ understanding. A standard error on the part of the parties would also be required. Please note: The provisions on the frustration of the contract can also be used to reclaim gratuitous gifts under exceptional circumstances.

The German lawyers at Schlun & Elseven Rechtsanwälte will happily explain the circumstances under which you are entitled to reclaim the gift. We will also inform you about possible grounds for exclusion, answer your questions and represent you in all legally relevant matters, both in and out of court.