Decision of the Berlin Higher Regional Court (KG Berlin) dated March 7, 2024, Case No. 16 UF 112/23
When a marriage fails and a divorce is granted, the family court automatically carries out the pension equalization process. In this process, the pension rights accrued by both spouses are usually divided equally between them. However, there can be exceptions that result in one spouse being excluded from pension equalization. This was determined by the Berlin Higher Regional Court in its decision dated March 7, 2024 (Case No.: 16 UF 112/23).
Pension equalization is generally carried out by the court in divorce proceedings, with only a few exceptions, and does not need to be specifically requested by either spouse. Since the roles within a marriage may differ, with one spouse perhaps focusing more on child-rearing than on their career, this can impact income and therefore accrued pension rights. To eliminate this imbalance, pension equalization is conducted, typically dividing the accrued pension rights equally between the spouses, according to the law firm MTR Legal Rechtsanwälte, which also advises on family law matters.
“Anti-marital” Behavior
However, an exception may occur if one spouse behaves in an “anti-marital” manner. In such cases, that spouse can even be excluded from pension equalization, as shown by the decision of the Berlin Higher Regional Court.
In the underlying case, the couple was living separately. The wife had left her husband and moved to Mallorca with her daughter. The husband was not the biological father of the child. He remained in Berlin and supported his wife and her daughter with a monthly maintenance payment of 1,500 euros. The couple had saved about 140,000 euros for their retirement, which was kept in a joint account accessible to both partners.
Wife Empties Joint Account
Some time after the wife moved to Mallorca, the husband suffered a stroke. While he was recovering in a rehabilitation clinic, his wife withdrew all the money from their joint retirement account behind his back and used it to finance the purchase of an apartment in Mallorca. The husband only learned that his wife had emptied the account after his recovery.
The couple eventually divorced, and the wife claimed a pension equalization amounting to nearly 100,000 euros. The husband opposed this, as he was still waiting for the repayment of the misappropriated 140,000 euros. He applied for his wife to be excluded from pension equalization under § 27 of the Pension Equalization Act (VersAusglG). This provision allows for the exclusion or limitation of pension equalization if it would be grossly unfair. The circumstances of the individual case must justify deviating from the principle of equal division.
Wife Excluded from Pension Equalization
Given the circumstances, the Berlin Higher Regional Court found it justified to exclude the wife from pension equalization. While her husband was still recovering from his stroke in the clinic, she had emptied the joint account. This showed deeply “anti-marital” behavior. The wife had acted purely out of selfish motives to buy an apartment with the money. In doing so, she had completely disregarded her husband’s interest in securing his retirement, acting deliberately and behind his back. The conditions to deviate from the principle of equal division in pension equalization were therefore met, according to the court.
The court further noted that the wife had refused to repay the wrongfully withdrawn money. Instead, she had even threatened to report her husband to the tax authorities. Under these circumstances, proceeding with pension equalization would be grossly unfair, the court ruled. The court also rejected the wife’s argument that she might face a “double penalty” if she were also ordered to repay the 140,000 euros in parallel proceedings. The court clarified that these were separate proceedings, and the claims could not be offset against each other.
Regulations in a Marriage Contract or Divorce Settlement Agreement
Pension equalization can only be rejected in cases of gross unfairness or if the marriage was of short duration. However, a couple does not have to leave the calculation of pension equalization to the court. They can establish their own rules for pension equalization in a marriage contract or divorce settlement agreement.
MTR Legal Rechtsanwälte advises on issues related to pension equalization, divorce, and other family law matters.
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