Marital status incorrectly stated
September 26, 2012 | 30,00 EUR | answered by Jan Wilking
Good day,
In September 2011, I got married abroad (for the second time), explicitly with separation of property. A week later, I signed a purchase contract for a condominium in Germany. The negotiations had taken almost two years and the seller had high hopes of establishing a relationship with me. That's why I initially kept the marriage a secret. By now, the personal circumstances are known and accepted. However, it is important for all of us to find out if the contract is legally valid, considering that at the time of signing, I falsely declared that I was (still) divorced. I considered the white lie necessary back then, as I couldn't be sure if the seller would maintain his offer if he found out about my marriage.
I assume that my husband has no claim to the apartment. However, what if I explicitly include him in my will now? Or doesn't he have a compulsory share if he lives in Germany and I were to pass away before him? The purchase contract explicitly states that only my son or my niece would have a claim to the apartment in case of my death. This would be impossible if my husband were to receive that compulsory share only if the heirs had to sell the apartment because they lack financial reserves.
Therefore, should the contract be renewed or amended to ensure that my husband does not benefit from the acquisition of the apartment in any case? Only then would the seller refrain from challenging the contract retroactively.
Thank you for your effort.
Best regards,
P.G.
Dear questioner,
I am happy to answer your inquiry considering the description of the facts and your input as follows:
It is already questionable whether the mistake regarding marital status actually entitles the seller to challenge the contract. The buyer simply made an error in his expectations, beliefs, or hopes (about a relationship) leading to the conclusion of the purchase contract. The mistake regarding the specific motive that led to his decision-making (so-called error in motivation) is generally irrelevant and does not justify challenging the declaration of intent made according to § 119 of the German Civil Code.
The only option would be to challenge the contract due to fraudulent deception. Since there is usually no obligation to disclose marital status in sales contracts, challenging under § 123 of the German Civil Code would only be possible if the seller explicitly asked about it before concluding the contract. Even then, it can be argued whether the question was impermissible and could have been answered falsely ("white lie"). Additionally, the seller would have to prove that they asked explicitly before concluding the contract.
Even with separate property division, your husband is entitled to the (small) compulsory portion of inheritance. This compulsory portion does not include acquiring ownership of the property but is directed towards receiving money from the heirs appointed in the will. You cannot eliminate this compulsory portion claim by modifying the purchase contract. However, you could declare an inheritance and/or compulsory portion waiver in a notarized contract. Alternatively, you could transfer the property to your son/niece now. The longer ago this gift took place at the time of your passing, the less the property would be considered for the compulsory portion, and after 10 years, it would not be considered at all.
I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that I cannot provide a definitive advice without knowing all circumstances in this initial consultation. If you seek a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards.
