My house, my car, my boat" - the advert from the 90s still seems amusing today. But when fun turns serious? Separation and divorce don't stop at us motorboat drivers. And who gets the boat or yacht "in the end"? A question that is not so easy to answer.
The first question that arises in the separation or divorce-related property division is whether the motor yacht belongs to one spouse alone or to both spouses jointly. If the yacht belongs to one spouse alone, the answer is simple: the sole owner is, as the term implies, entitled to all rights to the yacht "alone". He or she can dispose of it freely in accordance with Section 985 of the German Civil Code (BGB), unless third party rights exist for other reasons (e.g. ownership by way of security, seizure, etc.).
However, the legal situation is more complicated if the motor yacht is jointly owned by both spouses. In this case, as long as ownership has not been transferred to one party by contract or judgement, they can only dispose of the property jointly.
This can mean that a purchase agreement that one spouse concludes with a third party as the buyer only becomes effective if the other spouse and co-owner not involved in the agreement authorises the conclusion of the agreement. If the authorisation is not given, the buyer may have to return the object of purchase and may lose out on a good bargain.
He may even have to hand over the item if his contractual partner has in the meantime spent the amount of money received as the purchase price and no longer has sufficient assets to fulfil the repayment claim against the buyer.
Are boats considered household effects?
It should be noted that a motor yacht can belong to the so-called household goods (household contents) within the meaning of § 1369 BGB (see also our guide "Eignergemeinschaft" in BOOTE 7/05, p. 88-92) and therefore a purchase contract concluded by one spouse without the consent of the other spouse is invalid even if the boat belongs "solely" to the seller according to the content of the proof of ownership.
Whether or not a boat is part of the household contents is not determined by the value of the boat, but solely by the "dedication" made jointly by the spouses, according to the decision of the Higher Regional Court of Dresden of 25 March 2003 (file number 10 ARf 2/03).
Accordingly, a motor yacht is to be assigned to the household contents if, according to the living conditions of the spouses, it was wholly or predominantly intended to be used for marital and family cohabitation, including leisure and holiday activities.
It can become legally complicated if the yacht, regardless of whether it belongs to one spouse alone or to both spouses jointly, is damaged or destroyed after the separation or after the divorce petition has been served. In this case, a dispute may arise between the spouses as part of the settlement of their joint assets or in the equalisation of gains procedure as to whether the yacht should be taken into account at its value before or after the damage or destruction.
If there is comprehensive insurance and a claim for benefits against the insurer due to an insured event, the value of this claim may also be taken into account as part of the division of assets or in the equalisation of accrued gains.
It can become even more complicated from a legal perspective if the damaged or destroyed yacht is covered by comprehensive insurance, but the insurer refuses or reduces the benefit and the spouse who is entitled to claims against the insurance company as the (sole) policyholder does not wish to pursue his or her rights.
In this case, the value of the claim against the insurer may be taken into account with the contractually agreed sum insured or with the benefit claim in the assumed amount. The disadvantaged spouse may only be able to counter this "fictitious" valuation by suing the insurer to clarify whether the claim actually exists or not.
With regard to comprehensive insurance, it should also be noted that, according to the contractual conditions of most insurers, claims arising from the insurance contract cannot be assigned without the insurer's authorisation before they have been finally established (prohibition of assignment).
This circumstance can have the consequence that the assignment of the payment claim against the insurer regulated in an announced or already concluded property settlement agreement is void due to a lack of authorisation. In such a case, a property settlement agreement that has already been concluded may be contestable.
So rule who parts
Conclusion: After separating from their spouse, yacht owners should endeavour to reach an amicable agreement on the ownership situation and power of disposal with regard to the "divorce boat" at an early stage. It should be borne in mind that such agreements, provided they are made before the divorce hearing and do not exclusively concern household effects (see above), generally require notarisation in accordance with Section 1410 BGB.
Buyers of used boats are always well advised not only to consider the condition of the object of purchase, but also to take an interest in the family background of the seller, i.e. to ask him about this specifically and, in case of doubt, to make further enquiries (matrimonial property register, lists of debtors, etc.).
If there is or was "a spouse", they should be included in the purchase agreement and their consent to the legal transaction should be secured. Due to the ownership situation in relation to the boat, which is not easy to assess, "affected parties" are generally advised to at least consider seeking legal assistance.
