July 31, 2025
Die private pension scheme Plays an increasingly important role in ensuring living standards in old age. In maintenance law, the question is regularly raised as to what extent expenses for such pension provision Reduce alimony related income Can. The current advisory decision of Munich Higher Regional Court of 08.10.2024 — 16 UF 324/24 e This potentially marks a turning point, in particular with regard to the recognition of call money accounts as a suitable form of investment. This article highlights the specific decision of the Munich Higher Regional Court, places it in the previous legal context and highlights the resulting practical challenges.
The Munich Higher Regional Court had in its Advisory decision dated 08.10.2024 — 16 UF 324/24 e To decide whether payments to a call money account for additional retirement provision should be taken into account under maintenance law.
Summary of the decision: The Munich Higher Regional Court has clarified that regular deposits into a call money account due to access to the capital at any time Not be recognized as a secondary pension scheme. The court justifies this on the basis of the need to address abusive income structures. The same strict standards must therefore be applied for the recognition of secondary retirement provision by the person liable for maintenance as for the investment of pension maintenance on the part of the beneficiary. The decisive factors are earmarking And the Lack of availability at all times The means.
In this specific case, separating spouses were arguing about child and separation support. Among other things, the maintenance debtor claimed expenses for secondary retirement provision in the form of regular payments into a call money account in order to reduce his dependent income.
The Munich Higher Regional Court refused to recognize these payments as secondary retirement provision. On the grounds, the court stated that regular transfers to a call money account could not be recognized as secondary retirement provision due to access to the capital at any time. In order to counter an abusive income structure, the recognition of secondary retirement provision by the person liable for maintenance should be based on the same strict standards as for the investment of pension maintenance on the part of the beneficiary.
The argumentative line of the Higher Regional Court of Munich follows the case law of the Federal Court of Justice on the so-called Retirement allowance (Section 1578 (3) BGB). For this purpose, the Federal Court of Justice has developed strict criteria according to which the form of investment must guarantee actual retirement provision and serve earmarking purposes. The availability of funds in a call money account at any time precludes this earmarking, as the capital could be withdrawn for other purposes at any time. There is a lack of genuine and permanent “withdrawal from the asset circle” for retirement provision.
The Munich Higher Regional Court explicitly lists forms of investment that are recognized as admissible and serve to ensure living standards in old age:
To date, case law has recognized private pension provision as a necessary deduction in the calculation of maintenance income in order to enable the person liable to secure his own standard of living in old age.
A basic distinction is made between primary and secondary (or additional) retirement provision:
The following percentages of gross income are generally recognized as deductible for additional private retirement provision:
A decisive principle is always the Actual Implementation of Precautionary Measures. Notional deductions are not permitted; the funds must be verifiably and regularly paid into a pension scheme. Since private retirement provision — probably socially recognized — represents a necessary form of personal provision for old age, it is not decisive for the recognition of retirement provision under maintenance law whether the retirement provision was carried out before the separation; even taking up retirement provision only after separation must therefore be taken into account under maintenance law.
In the past, the Federal Court of Justice (BGH) has taken a relatively liberal stance regarding the choice of investment forms for secondary retirement provision. In particular, it was promised that “savings” should also be considered as an income-reducing form of investment (BGH judgment of 22.11.2006 file number XII ZR 24/04).
The Federal Court of Justice had recognized a wide range of investment types:
The core requirement was that the payments were actually for retirement provision and were made “earmarked,” even though the funds may not have been completely out of reach. The discernible intention to save assets for old age and not just to create short-term liquidity was decisive.
The Advisory Decision of the Higher Regional Court of Munich raises questions and could result in a significant Tightening of requirements for private pension provision in maintenance law Mean.
The decision of the Higher Regional Court of Munich, the standards of Retirement allowance (Section 1578 (3) BGB) Transferring to the secondary retirement provision of the maintenance debtor must be critically examined from a legal point of view. The purpose of retirement savings is to enable the dependent to make their own retirement provision if they are no longer able to make their own contributions to their retirement provision as a result of separation or divorce. The Debtor's secondary retirement provision, on the other hand, is part of his necessary personal provision and serves to secure his own standard of living in old age, which takes precedence over maintenance within a certain framework.
Critics complain that this equation ignores the different legal purposes of the two posts. A strict requirement for the “unavailability” of capital, as applicable to retirement savings, may be too restrictive for the maintenance debtor's own provision and ignore the variety of modern financial products and the need for flexible investment strategies.
Irrespective of the criticism, the resolution signals a possible turnaround towards significantly stricter requirements for the recognition of private pension plans as deductions. As your lawyer, I therefore strongly recommend that you critically review your own retirement planning.
The decision of the Higher Regional Court of Munich suggests that in future, courts could focus more on whether a form of investment as “supply-compensatory entitlement” Is to be regarded in the sense of the Pension Equalization Act (VersAusglG). Such rights are recognized by law as genuine retirement provision and have a high earmark and low availability before retirement age.
From this perspective, investment forms can be divided into risk categories for maintenance recognition:
This includes all entitlements that are also balanced in pension equalization:
These offer the highest guarantee of being recognized as a retirement provision under maintenance law.
Under certain conditions, this includes:
In the case of these types of investment, proof of earmarking and character as a genuine retirement provision is crucial.
Particularly critical Are now rated:
The Munich Higher Regional Court has explicitly pointed out that a transfer to a call money account that was only made after the separation could not be considered as a secondary retirement provision.
The advisory decision of the Higher Regional Court of Munich creates a significant legal uncertainty for maintenance advice and income adjustment practice. While the Federal Court of Justice wanted to recognize savings as retirement provision in individual cases, the Munich Higher Regional Court appears to be following a stricter line here, based on the “unavailability” of funds.
As your lawyer, I am obligated under liability law to recommend the most legally secure route to you. In view of these developments, I therefore advise in principle that when designing private pension plans, which should be deductible under maintenance law, for Deciding on investment forms that are offset as entitlements in pension equalization. These rights are recognized by law as genuine retirement provision and therefore offer the highest guarantee that they will also be recognized as such in maintenance law.
Practical effects: Choosing an unrecognized form of investment can have significant financial consequences. In the worst case scenario, the family court would not deduct the corresponding expenses from the relevant alimony income, which would increase the maintenance obligation accordingly.
The advisory decision of the Higher Regional Court of Munich dated 08.10.2024 — 16 UF 324/24 e signals a potential Stricter Interpretation of the Requirements for Private Pension Provision in Maintenance Law.
In the future, case law could tend to impose stricter requirements for private pension provision in maintenance law. This development aims to counteract the misuse of alleged retirement provision in some cases, which was operated for a short period of time purely out of maintenance motivation and then discontinued again.
Expected legal development: It is foreseeable that the Federal Court of Justice will have to address this legal issue promptly, as the advisory decision is contrary to previous liberal BGH case law. Until then, there is legal uncertainty, which requires particular care when designing private pension plans.
It is crucial that the court of Actual pension nature of the chosen investment type to convince. This is usually easy with traditional pension products, such as pension insurance or Riester contracts. Clients who opt for forms of investment that are freely available to them at any time will have to convince the court in the future that “saving away” is not wealth creation, but actually retirement provision. In the case of savings rates that are only taken out after the separation, this will, however, be Very difficult.
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