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An Appropriately Used Family Home Is Not Taken Into Account for Parental Maintenance - Family Law

In the view of the Federal Supreme Court [BGH], the value of real estate appropriately used is not to be taken into account when calculating the assets of persons responsible for the upkeep of their parents.


Cologne, NRW -- (SBWIRE) -- 10/14/2013 -- GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London – conclude: In a decision of August 7, 2013 (File number XII ZB 269/12), the Federal Supreme Court ruled that the value of real estate used appropriately as a family home is not to be taken into account when the assets of persons responsible for the upkeep of their parents are calculated, since they cannot be expected to liquidate the property.

In the case at hand, the defendant’s mother is living in a senior nursing home but cannot pay the cost alone; the petitioner therefore had granted her social assistance. However, the petitioner was then requesting reimbursement, and the question was whether the defendant was responsible for paying support based on his income or his assets.

The Municipal Court (AG) had ordered the defendant to pay an amount of support which the Superior Court (OLG) had calculated, partly on the basis of income and benefits from a family home and the 50% ownership in a house in Italy, since this did not exceed the amount of personal assets to which the defendant is entitled for self-support. The OLG first dismissed the petition for support, but at the petitioner’s request dismissed his entire petition, following which the latter filed an appeal.

The BGH dismissed the appealed judgment and referred the case back to the OLG. The reason given by the BHG was that the defendant’s net income had been calculated in error, that while in principle, children are obligated to include the core of their assets when their obligation to support their parents is calculated, the children’s own obligations must also be accounted for, that their own livelihood must not be endangered, and that in particular the debts they owe for support must not jeopardize their provision for their own old age. That is what the BGH ruled.

The BGH also decided that the value of an appropriately used family home must be disregarded, since it cannot be expected that children obligated to support their parents would have to liquidate such property. Neither should they have to pay support based on the core of their assets if their other assets do not exceed 5% of the gross income during the rest of their working life to protect provision for their own old age.

The BGH also found that their own obligations had been miscalculated, and that the OLG had disregarded travelling expenses for visiting the mother, which can be deducted because in the BGH’s opinion, such visits fulfil a moral obligation that must be recognized in support law and should be taken into account.

Whether dealing with a marriage contract, a divorce, or support – in family law, it is an advantage to consult a lawyer who will represent your interests appropriately.

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GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.

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