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=U4= Sec1363 -- Section 1363 Community of accrued gains
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=S=> BGB 1363. 1 The spouses live under the property regime of community of accrued gains if they do not by marriage contract agree otherwise .
=S=> BGB 1363. 2 The property of the husband and the property of the wife do not become the common property of the spouses ; the same applies to property that one spouse acquires after marriage . The accrued gains that the spouses acquire in the marriage , however , are equalised if the community of accrued gains ends .
=U4= Sec1364 -- Section 1364 Management of property
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=S=> BGB 1364 Each spouse manages his property independently ; however , he is restricted in the management of his property under the following provisions .
=U4= Sec1365 -- Section 1365 Disposition of property as a whole
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=S=> BGB 1365. 1 A spouse may only with the consent of the other spouse agree to dispose of his property as a whole . Where he has agreed without the approval of the other spouse , he may perform the duty only if the other spouse consents .
=S=> BGB 1365. 2 Where the transaction complies with the principles of proper management , the family court , on the application of the spouse , may substitute the approval of the other spouse if the latter refuses it without adequate cause or is prevented by illness or absence from making a declaration and delay entails risk .
=U4= Sec1366 -- Section 1366 Ratification of contracts
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=S=> BGB 1366. 1 A contract which a spouse enters into without the necessary consent of the other spouse is effective if the spouse ratifies it .
=S=> BGB 1366. 2 Until the ratification , the third party may revoke the contract . Where he knew that the man or the woman was married , he may revoke only if the man or the woman untruthfully claimed that the other spouse had consented ; in this case too , he may not revoke if when he entered into the contract he knew that the other spouse had not consented .
=S=> BGB 1366. 3 Where the third party requests the spouse to obtain the necessary ratification of the other spouse , the latter may declare ratification only to the third party ; if he made a declaration to his spouse even before the request , the declaration becomes ineffective . The ratification may be made only within two weeks after the receipt of the request ; if it is not made , it is deemed to have been refused . If the family court substitutes the ratification , its order is effective only if the spouse communicates it to the third party within the two-week period ; failing this , the ratification is deemed to have been refused .
=S=> BGB 1366. 4 If ratification is refused , the contract is ineffective .
=U4= Sec1367 -- Section 1367 Unilateral legal transactions
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=S=> BGB 1367 A unilateral legal transaction that is entered into without the necessary consent is ineffective .
=U4= Sec1368 -- Section 1368 Asserting the ineffectiveness
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=S=> BGB 1368 If a spouse , without the necessary approval of the other spouse , disposes of his property , the other spouse is also entitled to assert the rights arising from the ineffectiveness of the disposition against the third party in court .
=U4= Sec1369 -- Section 1369 Dispositions of household objects
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=S=> BGB 1369. 1 A spouse may dispose of objects of the household of the spouses belonging to him and agree to such a disposition only if the other spouse consents .
=S=> BGB 1369. 2 The family court , on the application of the spouse , may substitute the approval of the other spouse if the latter refuses it without adequate cause or is prevented by illness or absence from making a declaration .
=S=> BGB 1369. 3 The provisions of sections 1366 to 1368 apply with the necessary modifications .
=U4= Sec1370 -- Section 1370 Replacement of household objects
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=S=> BGB 1370 Household objects that are acquired in place of objects that are no longer in existence or have become valueless become the property of the spouse who owned the objects that are no longer in existence or have become valueless .
=U4= Sec1371 -- Section 1371 Equalisation of accrued gains in the case of death
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=S=> BGB 1371. 1 If the property regime is ended by the death of a spouse , the equalisation of the accrued gains is effected by the share of the inheritance on intestacy of the surviving spouse being increased by one quarter of the inheritance ; it is irrelevant here whether the spouses in the individual case have made accrued gains .
=S=> BGB 1371. 2 If the surviving spouse does not become an heir and if he has no right to a legacy , he may demand equalisation of the accrued gains under the provisions of sections 1373 to 1383 and section 1390 ; the compulsory portion of the surviving spouse or of another person entitled to a compulsory portion is determined in this case with reference to the share of the inheritance on intestacy of the spouse before it is increased .
=S=> BGB 1371. 3 Where the surviving spouse disclaims the inheritance , then in addition to the equalisation of the accrued gains he may demand the compulsory portion even if he would have no entitlement to this under the provisions of the law of succession ; this does not apply if he has waived his right of intestate succession or his right to a compulsory portion by a contract with his spouse .
=S=> BGB 1371. 4 Where descendants of the deceased spouse who are entitled to inherit , and who are not descended from the marriage ended by the death of this spouse , are in existence , the surviving spouse has a duty to grant these descendants , if and to the extent that they need these , the means for a reasonable education from the quarter additionally granted under subsection ( 1 ) .
=U4= Sec1372 -- Section 1372 Equalisation of accrued gains in other cases
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=S=> BGB 1372 If the property regime is ended in another way than by the death of a spouse , the accrued gains are equalised under the provisions of sections 1373 to 1390.
=U4= Sec1373 -- Section 1373 Accrued gains
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=S=> BGB 1373 Accrued gains means the amount by which the final assets of a spouse exceed the initial assets .
=U4= Sec1374 -- Section 1374 Initial assets
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=S=> BGB 1374. 1 Initial assets means the assets that belong to a spouse at the beginning of the property regime after the deduction of the liabilities ; the liabilities may be deducted only to the amount of the assets .
=S=> BGB 1374. 2 Assets which a spouse acquires after the beginning of the property regime as a result of death or with regard to a future right of succession , by donation or as advancements , are added to the initial assets after the deduction of the liabilities , to the extent that in the circumstances they are not to be seen as income .
=U4= Sec1375 -- Section 1375 Final assets
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=S=> BGB 1375. 1 Final assets means the assets that belong to one spouse at the end of the property regime after the deduction of the liabilities . The liabilities are also deducted , if third parties may be claimed on under section 1390 , to the extent that they exceed the amount of the assets .
=S=> BGB 1375. 2 The final assets of a spouse are increased by the amount by which these assets are reduced as a result of the fact that a spouse , after the beginning of the property regime , made gratuitous dispositions by which he was not fulfilling a moral duty or showing regard for decency , squandered property , or performed acts with the intention of disadvantaging the other spouse .
=S=> BGB 1375. 3 The amount by which the assets are reduced is not added to the final assets if the reduction was effected at least ten years before the end of the property regime or if the other spouse was in agreement with the gratuitous disposition or the squandering .
=U4= Sec1376 -- Section 1376 Ascertainment of the value of the initial and final assets
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=S=> BGB 1376. 1 The calculation of the initial assets is based on the value that the assets in existence at the beginning of the property regime had at that date and that the assets to be added to the initial assets had at the date of their acquisition .
=S=> BGB 1376. 2 The calculation of the final assets is based on the value that the assets in existence at the end of the property regime had at that date and that a reduction of assets to be added to the final assets had at the date when the reduction occurred .
=S=> BGB 1376. 3 The above provisions apply with the necessary modifications for the valuation of liabilities .
=S=> BGB 1376. 4 An agricultural or forestry enterprise which is to be taken into account in the calculation of the initial assets and the final assets is to be reported at income value if the owner is claimed on under section 1378 ( 1 ) and it can be expected that the enterprise is continued or recommenced by the owner or a descendant ; the provision of section 2049 ( 2 ) applies .
=U4= Sec1377 -- Section 1377 List of initial assets
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=S=> BGB 1377. 1 If the spouses have jointly drawn up a list recording the inventory and the value of the initial assets belonging to one spouse and the objects to be added to these assets , it is presumed , as between the spouses , that the list is correct .
=S=> BGB 1377. 2 Each spouse may require that the other spouse cooperate in drawing up the list . The drawing up of the list is governed by the provisions of section 1035 applying to usufruct . Each spouse may , at his own cost , have the value of the assets and the liabilities determined by experts .
=S=> BGB 1377. 3 To the extent that no list has been drawn up , it is presumed that the final assets of a spouse represent his accrued gains .
=U4= Sec1378 -- Section 1378 Equalisation claim
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=S=> BGB 1378. 1 If the accrued gains of one spouse exceed the accrued gains of the other spouse , the half of the surplus is due to the other spouse as an equalisation claim .
=S=> BGB 1378. 2 The amount of the equalisation claim is limited by the value of the assets that remain , after deduction of the liabilities , at the end of the property regime .
=S=> BGB 1378. 3 The equalisation claim arises on the ending of the property regime and from this date on it is inheritable and transferable . An agreement on the equalisation of the accrued gains that the spouses enter into , during proceedings instituted to dissolve the marriage , for the eventuality of the dissolution of the marriage , must be notarially recorded ; section 127a also applies to an agreement that is recorded in proceedings on family matters before the court hearing the case . Apart from this , neither spouse may before the end of the property regime agree to dispose of the equalisation claim .
=S=> BGB 1378. 4 The equalisation claim is statute-barred in three years ; the period begins on the date on which the spouse discovers that the property regime has ended . However , the claim is statute-barred at the latest thirty years after the property regime ends . If the property regime ends as the result of the death of a spouse , moreover , the provisions that govern the limitation of a claim to a compulsory share apply .
=U4= Sec1379 -- Section 1379 Duty of information
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=S=> BGB 1379. 1 After the end of the property regime , each spouse has a duty to inform the other spouse of the inventory of his final assets . Each spouse may require that he be involved in the drawing up of the list to be submitted to him under section 260 and that the value of the assets and the liabilities is determined . He may also demand that the list be drawn up at his cost by the competent authority or by a responsible official or notary .
=S=> BGB 1379. 2 If a spouse has petitioned for divorce or the annulment of the marriage , subsection ( 1 ) applies with the necessary modifications .
=U4= Sec1380 -- Section 1380 Set-off of advancements
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=S=> BGB 1380. 1 Against the equalisation claim of a spouse is set off what he is given by the other spouse by inter vivos legal transaction with the provision that it is to be set off against the equalisation claim . In case of doubt it is to be assumed that dispositions should be set off if their value exceeds the value of occasional gifts that are customary in keeping with the standard of living of the spouses .
=S=> BGB 1380. 2 In the calculation of the equalisation claim , the value of the disposition is added to the accrued gains of the spouse who made the disposition . The value is determined according to the date of the disposition .
=U4= Sec1381 -- Section 1381 Refusal of satisfaction for gross inequity
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=S=> BGB 1381. 1 The debtor may refuse to satisfy the equalisation claim to the extent that the equalisation of accrued gains in the circumstances of the case would be grossly inequitable .
=S=> BGB 1381. 2 Gross inequity may in particular be given if the spouse who made the smaller amount of accrued gains for a long period culpably failed to discharge his financial duties which arise from the marital relationship .
=U4= Sec1382 -- Section 1382 Deferment
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=S=> BGB 1382. 1 On application , the family court defers an equalisation claim , to the extent that it is not disputed by the debtor , if immediate payment would occur at an inopportune time , also taking into account the interests of the creditor . Immediate payment would also occur at an inopportune time if it would cause long-term deterioration in the housing conditions or other aspects of the standard of living of children of the spouses .
=S=> BGB 1382. 2 The debtor must pay interest on a deferred claim .
=S=> BGB 1382. 3 On application , the family court may order that the debtor is to provide security for a deferred claim .
=S=> BGB 1382. 4 The family court decides at its reasonably exercised discretion the amount and due date of the interest and on the nature and scope of the security provided .
=S=> BGB 1382. 5 To the extent that a legal dispute on the equalisation claim is pending at court , the debtor may make an application for deferment only in these proceedings .
=S=> BGB 1382. 6 The family court may , on application , set aside or alter a final and absolute decision if the circumstances have substantially changed since the decision .
=U4= Sec1383 -- Section 1383 Transfer of assets
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=S=> BGB 1383. 1 On the application of the creditor , the family court may order that the debtor is to transfer particular objects of his assets to the creditor , to be set off against the equalisation claim if this is necessary to avoid gross inequity for the creditor and if this can be expected of the debtor ; the decision must stipulate the amount that is set off against the equalisation claim .
=S=> BGB 1383. 2 In the application , the creditor must designate the objects whose transfer he seeks .
=S=> BGB 1383. 3 Section 1382 ( 5 ) applies with the necessary modifications .
=U4= Sec1384 -- Section 1384 Date of calculation in the case of divorce
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=S=> BGB 1384 If the marriage is dissolved by divorce , then when the accrued gains are calculated , the date of the end of the property regime is replaced by the date when the divorce petition was first pending at court .
=U4= Sec1385 -- Section 1385 Premature equalisation of accrued gains when spouses are living apart
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=S=> BGB 1385 If the spouses have lived apart for at least three years , either from them may institute proceedings for premature equalisation of the accrued gains .
=U4= Sec1386 -- Section 1386 Premature equalisation of accrued gains in other cases
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=S=> BGB 1386. 1 A spouse may institute proceedings for premature equalisation of accrued gains if the other spouse for a long period culpably failed to discharge his financial duties which arise from the marital relationship and it is to be assumed that he will not discharge them in future either .
=S=> BGB 1386. 2 A spouse may institute proceedings for premature equalisation of accrued gains if the other spouse has entered into a legal transaction of the nature set out in section 1365 without the necessary approval or has reduced his assets by one of the acts set out in section 1375 and a substantial endangerment of the future equalisation claim is to be feared .
=S=> BGB 1386. 3 A spouse may institute proceedings for premature equalisation of accrued gains if the other spouse persistently refuses without adequate reason to inform him of the inventory of his assets .
=U4= Sec1387 -- Section 1387 Date of calculation in the case of premature equalisation
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=S=> BGB 1387 If the court grants premature equalisation of the accrued gains , then when the accrued gains are calculated , the date of the end of the property regime is replaced by the date on which the action for premature equalisation is instituted .
=U4= Sec1388 -- Section 1388 Occurrence of separation of property
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=S=> BGB 1388 When the judgment by which premature equalisation of accrued gains is granted becomes final and absolute , separation of property occurs .
=U4= Sec1389 -- Section 1389 Provision of security
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=S=> BGB 1389 Where the action for premature equalisation of accrued gains has been instituted or the petition for divorce or annulment of marriage has been filed , a spouse may demand provision of security if , by reason of the conduct of the other spouse , it is to be feared that his rights to the future equalisation of accrued gains are substantially endangered .
=U4= Sec1390 -- Section 1390 Claims against third parties of the person entitled to equalisation
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=S=> BGB 1390. 1 To the extent that , under section 1378 ( 2 ) , a spouse is not entitled to an equalisation claim because the other spouse , with the intention of disadvantaging him , made gratuitous dispositions to a third party , the third party is obliged to return the property received under the provisions on the return of unjust enrichment to the spouse for the purpose of compensation for the lost equalisation claim . The third party may avoid return by paying the missing sum .
=S=> BGB 1390. 2 The same applies to other legal transactions if the intention to disadvantage the spouse was known to the third party .
=S=> BGB 1390. 3 The claim is statute-barred three years after the end of the property regime . If the property regime ends as a result of the death of a spouse , the limitation is not suspended as a result of the fact that the claim cannot be asserted until the spouse has disclaimed the inheritance or a legacy .
=S=> BGB 1390. 4 If the action for premature equalisation of the accrued gains has been instituted or the petition for divorce or annulment of the marriage has been filed , a spouse may require security from the third party for his claims under subsections ( 1 ) and ( 2 ) .
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