05. November 2013
In a recent case, Germany’s Federal Court of Justice upheld a lower court judgment ordering a lottery winner to pay half of the money to his ex-wife although the couple had separated 9 years earlier.
The Federal Court of Justice (Bundesgerichtshof, BGH) had to answer the question whether a wife was entitled to half of a lottery win. The husband had won the amount while the couple were still officially married but had been separated for 9 years (case ref.: XII ZB 277/12).
The parties to the dispute married in 1971. In August 2000 the couple separated and in January 2009 the couple filed for divorce which became legally effective in October 2009.
In November 2008, while the couple were separated but not officially divorced, the ‘ex-husband’ and his new partner won over €900,000 on the lottery.
Increase in value of assets
Under German law, a married couple has joint ownership of the increase in value of each other’s assets. When a couple divorce the value gained by the respective assets is divided equally and a relevant payment is made (§ 1363 German Civil Code, Bürgerlichesgesetzbuch, BGB).
As a result, the ‘ex-wife’ (the applicant) claimed that she was entitled to half of the lottery win as it should be considered an accrued gain made during the marriage. The county court agreed and ordered the ‘ex-husband’ (the respondent) to pay €242.500.
The respondent appealed to the Regional Appeal Court which reduced the sum to €8,000 and rejected the rest of the applicant’s claim. The applicant then appealed to the BGH.
The respondent argued that the lottery win should be classed as privileged initial assets under § 1374(2) BGB.
This paragraph allows for the acquisition of assets such as inheritances, gifts or donations to be added to the initial assets of a partner. These are not considered to be an increase in value of assets during the marriage when calculating the amount of compensation to be paid.
The BGH rejected this argument, finding that the lottery win was not comparable to an inheritance, a gift or a donation as there was a lack of personal connection.
The respondent also argued that payment of half of the lottery win would be grossly unfair (§ 1381(1) BGB).
The BGH rebutted this argument. In the court’s opinion, the lengthy separation did not in itself give rise to gross unfairness and it was irrelevant that the lottery win occurred outside the framework of the marital relationship. The court added that other than those property acquisitions mentioned in § 1374(2) BGB, German law does not distinguish between how the property is acquired.
The court also noted that all the circumstances of the case should be considered. In this particular case, the judges gave weight to the fact that the marriage had lasted for 29 years and had produced three children. These circumstances did nothing to support the contention of gross unfairness.
The legal position here is clear. Even after 9 years’ separation a lottery win can be considered an increase in the value of a partner’s assets. This increase in value is then used to work out how much the other partner is entitled to under § 1363 BGB.
While it may seem unfair that the financial demands here were, as a result of a lottery win, unusually high, this is no legal basis for refusing to make a payment on the basis that the lottery winner would suffer unfair hardship.
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