After a divorce, the pension equalization ensures a fair distribution of pension entitlements between the ex-partners. But if the separation itself was a long time ago, it can be limited.
If a lot of time has passed between a couple’s separation and divorce, this can have consequences for the equalization of pensions. The Family Law Working Group of the German Lawyers’ Association (DAV) refers to a corresponding judgment of the Brandenburg Higher Regional Court (Az.: 13 UF 25/21).
In this specific case, a couple only initiated divorce proceedings 13 years after their separation. When they separated, both partners had also concluded a contract in which they each waived maintenance and agreed to separate property. In addition, the pension equalization should be carried out in accordance with the statutory provisions.
When compensating, however, the district court limited this to the time up to the end of the year of separation. The woman saw her ex-husband favored. But the higher regional court confirmed the limitation to the time of living together. Reason: a particularly long period of separation in the case of complete economic independence of the spouses.
In some cases, the court may not carry out a pension equalization in the event of a divorce. These so-called exclusion reasons are:
short marriage
If the marriage only lasted three years or less, a pension equalization only takes place if one or both former partners apply to the family court.
insignificance
If the entitlements of the ex-partner are predominantly of equal value or if the entitlements are individual, insignificant, the family court will not settle the matter.
wrongdoing
But even in the case of gross misconduct on the part of a spouse, there is usually no compensation.
Individual agreement
In principle, however, married couples can also make their own arrangements for structuring their pension provision in the event of a divorce. In order to be valid in court, these must be certified by a notary. In this way, a pension equalization can also be completely ruled out. However, this is only recognized in court if there is a comparable compensation. This is to avoid a partner being severely disadvantaged or requiring government assistance in old age.
Otherwise, the equalization of pensions serves to compensate for inequalities in the married couple’s working life – for example, if the woman mainly takes care of the children together, has no income of her own and therefore pays less into the pension fund. Then, when it comes to pensions and maintenance, the law will ensure that this commitment to the family is not to the detriment of that partner.
It should be noted that only claims that the court is aware of are taken into account in the pension rights adjustment. It is true that each spouse must tell the court all pension providers from whom he has entitlements, which the court then transmits to the other partner for inspection. However, if an entitlement has been forgotten and remains unnoticed by the soon-to-be ex-spouse, this does not subsequently lead to a change in the defined pension equalization.
(This article was first published on Monday, February 20, 2023.)
