KG Berlin; 2023-08-30; 16 UF 43/23
Decision by national courts in the field of European Union law — ECLI:DE:KG:2023:0830.16UF43.23.00
Date: 2023-08-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0830(52)_ENG_SUMJURE
JURE summary
JURE summary
A wife (hereinafter ‘the plaintiff’) appealed against the ruling on pension rights equalisation contained in the divorce judgement, which dissolved her marriage to her husband (hereinafter ‘the defendant’) and implemented a pension rights equalisation.
She argued that she did not want to include two of her life insurance entitlements amounting to EUR 6 688.21 and EUR 16 155.30 in the pension rights equalisation. One of these entitlements had not been acquired ‘through work or assets’ within the meaning of Section 2(2)(1) of the VersAusglG (1), but through gifts from her father. He had regularly transferred sums of money to her in order to close the gap in her pension due to her part-time work. In addition, she argued that the defendant (who was formerly the plaintiff in the pension equalisation proceedings) had entered into an extramarital relationship in 2007/2008, which had resulted in a child. This had caused her massive disadvantages. As a result of the affair, the defendant had lost his job and his high income and had also had to pay maintenance for the extramarital child. The plaintiff also referred to a right acquired by the claimant abroad during the marriage, which, due to its nature as a capital life insurance policy, was not subject to equalisation and was only subject to a contractual pension rights equalisation. This represented an additional risk for her.
The defendant disputed that the insurance contributions had actually been paid directly by the plaintiff’s father to the pension provider. Instead, the father had merely transferred payments to the plaintiff, who in turn had paid the contributions to the insurance company from her own assets. Therefore, this was a regularly acquired entitlement that was subject to pension rights equalisation. He rejected the accusation of an extramarital affair and the alleged reasons for the termination of his employment as defamatory.
The Amtsgericht Pankow (hereinafter ‘the Court of First Instance’) dissolved the marriage and ordered the inclusion of both of the plaintiff’s entitlements.
The plaintiff lodged an appeal against this decision with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’). The Court of Appeal upheld the decision of the Court of First Instance.
It found that the funds transferred by her father did not go directly to the pension provider, but first into her own assets. The payments into the occupational pension scheme were therefore made from her assets, meaning that the acquired entitlements were subject to pension rights equalisation. The objection of gross unfairness due to the extramarital relationship was also unsuccessful. The Court of Appeal emphasised that pension rights equalisation was not an instrument for sanctioning marital misconduct. Exclusion was only to be considered in extreme exceptional cases, such as when a spouse is deceived about the paternity of a child. Such circumstances did not exist. Nor did the court see any gross unfairness in the claim that the defendant had lost his job as a result of his behaviour. Even if this had been true, it would have been a mere incidental effect without any deliberate manipulation of the pension rights equalisation. Finally, the Court of Appeal also rejected the argument that the defendant’s foreign insurance policy jeopardised the balance. As this entitlement was a capital life insurance policy, it was not subject to pension rights equalisation anyway, but was to be treated under matrimonial property law.
The Court of Appeal dismissed the plaintiff’s appeal against the ruling on pension rights equalisation in the divorce judgment issued by the Court of First Instance.
(1) Gesetz vom 3. April 2009 über den Versorgungsausgleich (German Pension Rights Equalisation Act).