matrimonial property
noun · Zugewinngemeinschaft
Zugewinngemeinschaft is the default German regime, but it is not community of property. The spouses keep their assets separate throughout the marriage, § 1363 BGB, and only the gain each made is equalised when it ends, half the difference as a money claim, § 1378 BGB. So English talk of matrimonial property to be divided, and any rendering as community of property, misreads what German law does.
Which translation, when
Why
English matrimonial property is a pool the court divides on divorce under a broad discretion, s.25 Matrimonial Causes Act 1973, starting from equal sharing but adjustable for need and fairness. German law has no such pool. The default regime is Zugewinngemeinschaft, and its central feature is that the spouses’ assets stay separate, marriage creates no common ownership, § 1363 II BGB, so there is no matrimonial property to divide. What is shared is only the Zugewinn, the increase each spouse’s assets showed between the start and the end of the marriage, and when the regime ends the spouse with the smaller gain receives half the difference as a money claim, the Ausgleichsforderung, § 1378 BGB, not a share of any particular asset. Two consequences surprise the English reader. The equalisation is arithmetic rather than discretionary, the court applies the formula rather than weighing fairness, and only a narrow backstop lets the debtor refuse a result grossly unfair on special facts, § 1381 BGB. And during the marriage a spouse cannot dispose of their whole property without the other’s consent, § 1365 BGB, a restriction that can catch a buyer who did not know the seller was married. Rendering Zugewinngemeinschaft as community of property, or matrimonial property as an asset pool, gets the regime backwards.
Typical mistakes
- Zugewinngemeinschaft is not community of property, § 1363 II BGB keeps the spouses’ assets separate, so translating it as community of property or joint estate reverses the rule.
- The Zugewinnausgleich is a money claim for half the difference in accrued gains, § 1378 BGB, not a division of specific assets, so an English-style share of the house or the business is the wrong picture.
- The equalisation is calculated rather than discretionary, bar a narrow grob-unbillig backstop, § 1381 BGB, so importing the s.25 discretion of English law, need, conduct, fairness, misstates how the German figure is reached.
What matters
A prenuptial or divorce discussion for an English-German couple, the phrase matrimonial property in play: rendering it as an asset pool, or Zugewinngemeinschaft as community of property, misleads on both sides, because German assets stay separate, § 1363 BGB, and only the accrued gain is equalised as a money claim, § 1378 BGB.
What the machine misses
Matrimonial property invites community of property or gemeinsames Vermögen from the machine, and Zugewinngemeinschaft is often returned as community of property in the other direction, both of which invert the regime. German spouses keep their assets separate, § 1363 II BGB, and share only the accrued gain as a money claim, § 1378 BGB, so the translated text suggests a common pool of assets German law does not create, and the English reader plans a division that will never happen.
Examples
| the matrimonial property regime | der Güterstand |
| community of accrued gains | die Zugewinngemeinschaft |
| the equalisation claim | die Ausgleichsforderung |