Introduction to German Divorce Law
If you are interested in German Divorce Law, you are probably in the middle of a marriage crisis. Facing a possible breakup with no outlook for reconciliation, you need to familiarize yourself with the divorce law in Germany. It is an emotionally challenging time, but you should know which legal obligations and rights follow on a breakup and divorce. The German divorce law is not only shaped by the sections of the family law, but also by leading court rulings. In the following, you will find important information on how to conduct a divorce in Germany and also learn about strategies on how to manage the situation.
- If you are familiar with the German divorce law, you will have a better understandingof the divorce proceedings. In addition, you will be able to communicate better with your attorney and contribute more effectively to the process of your divorce.
- You can file for an uncontested divorce after a separation period of one year. In case your spouse contests your application for divorce, you need to prove the failure of your marriage in order to proceed. Without proof of the failure of the marriage you can get divorced after a period of three years.
- A premature divorce before completion of the separation year can be granted in case the continuation of your marriage is considered unreasonable.
- In front of the family court you need to be represented by an attorney. Nowadays, you can appoint your attorney online.
- The best way to achieve an uncontested divorce is by agreeing on the consequences of the breakup and divorce in a mutually beneficial agreement on the consequences of divorce.
Why Should You Familiarize yourself with the German Divorce Law?
You could take the easy way out by hiring a divorce attorney to handle everything for you. But in doing so, you would risk that not everything is handled in your best interest or not in the way you would like it to be handled. Only if you are familiar with the basics of your rights and obligations during a breakup and divorce, you can actively influence the outcome and avoid unnecessary disadvantages. While attorneys are perfectly familiar with the legal aspects, they might not know everything about your personal or family life that also plays into the case. If you have a basic understanding of the legal framework, you can outline the best strategy possible with your attorney.
This kind of knowledge is especially important when your spouse is familiar with the divorce law in Germany. This would give your spouse an advantage for the upcoming divorce. By knowing about all of the legal rights and obligations, you can secure your own position and actively participate in the process.
You Need to Complete A Year of Separation
One of the legal requirements is the completion of a year of separation. According to section 1565 para. I of the German Civil Code you need to provide proof for the breakdown of your marriage. The year of separation indicates that your marriage has broken down and that there is no hope of reconciliation. After completion of a year of separation you can file for divorce. In case of hardship it may be possible to file for divorce earlier, but keep in mind that you need to prove your case of hardship. If your spouse contests your application for divorce, it may take even longer.
Our expert's advice:
Being separated in a legal sense requires the separation of your matrimonial union. Usually, one spouse will move out. But, in case of financial problems, you may live separately within your marital home. In this case you have to split the apartment or house, so every spouse has her or his own living space. If you try to reconcile during the year of separation, trial periods of up to three months will not impact the duration of your separation year.
What are the requirements to get divorced?
You can only get legally divorced by judicial decision. Usually, the family court which belongs to the district court is responsible for divorce proceedings. Only when none of the spouses appeals any further to the judicial decision, the divorce is final, and the marriage is dissolved. The requirements to get divorced can be found in the sections 1565 to 1568 of the German Civil Code.
Uncontested divorce after a year of separation
Your marriage can be dissolved if it failed. This requires you and your spouse to live separately with no hope of reconciliation from either one of you. After one year of separation it is assumed that your marriage failed. If both of you file for divorce or one spouse agrees to the divorce application of the other spouse, the marriage can be lawfully dissolved.
Contested divorce after a year of separation
If your spouse does not agree to your application for divorce, you can still get divorced if you can prove the undeniable breakdown of your marriage after a year of separation. This will depend on the individual circumstances of your case. You need to make clear that there is no interest in continuing the marriage and that the desire to reconcile is not to be expected. Possible reasons are a new and long-lasting partnership, adultery, insults, alcoholism or domestic violence. If you succeed, you will get divorced, even against the will of your spouse.
Divorce after three years of separation
If you are separated for more than three years, it is assumed that your marriage failed. In this case you do not need to further prove the breakdown of your marriage. You can get divorced against the will of your spouse.
Divorce without or before one year of separation
In a recognized and proven case of hardship, you can get divorced without completing the year of separation and even if you still live in the same house. It is to be assumed, that your marital union does not exist anymore, if one of the spouses lost all affection and understanding for the mutual care. In this case the continuation of being married is undeniably unreasonable. If the case of hardship is not recognized by the court, you need to complete the year of separation. This kind of divorce is decided on a case-by-case-basis. The following cases have been accepted as cases of hardship:
- Alcoholism and the refusal of treatment,
- Pregnancy of the wife by another man,
- Constant visits of a new partner in the marital home.
How to File for Divorce at Court
If you want to get a divorce, one spouse has to file for divorce at the locally responsible court. Usually, the court in the district where the couple last resided in is in charge. If you live abroad, you need to file for divorce at the district court in Berlin-Schöneberg. Within the district court, the family court is responsible for divorces. Your case will be handled by a single judge. She or he will also decide on all legal family matters attached to the divorce.
If you do not have the German citizenship or if your spouse is not a German citizen, or if both of you have a foreign citizenship, but you live in Germany, the court will usually apply German law. If the application of the specific law is questioned in your case, it can be useful to agree on it in a choice of law and jurisdiction. You need to agree on it in an agreement and the document has to be signed by both spouses. If you live in Germany, you also need to notarize the agreement by an approved notary. Then your agreement will be legally binding. If you have a marriage contract, you should check whether you already agreed on a choice of law and jurisdiction, then you do not need to do it again.
Our expert's advice:
If you have a low income and struggle with how to finance your divorce, you might qualify for procedural costs aid. In this case the state will cover the costs for the court and attorney for you.
How Can the Spouse Hinder or Delay the Divorce?
If your marriage is irretrievably broken, it can be dissolved. In cases of hardship the court will reject to divorce the couple, even if it is clear that the marriage is irretrievably broken. These are cases in which it would be unreasonable for one spouse to get divorced right away. In these situations, the contesting spouse can delay your divorce, but not hinder it indefinitely. Possible cases of hardship might be:
- The couple has a minor to care for
- The child threatens to take its own life in case of a divorce
- The contesting spouse suffers from a deadly sickness.
Hire a Divorce Attorney
In front of the family court you are obligated to be representedby an attorney who is admitted to practice law in Germany. Only an attorney can file for divorce and represent you in the hearing. This way you do not have to worry about legal details in the proceedings and you have professional support.
Our expert's advice:
If you are hesitant about going directly to a law firm, you can consider applying for an online-divorce. This way you can handle your divorce online, regardless of time and location. If you choose a divorce-service, they can help you find a competent and experienced divorce attorney. These services generally only work with reliable attorneys that have proven themselves in the field.
Uncontested or Contested Divorce?
The duration of the divorce proceeding depends on various factors, such as the court’s workload, but also on you as a couple. If you agree on matters concerning the consequences of your divorce, like alimony or your marital home, the court does not need to assess these topics separately. It only has to decide on the pension rights adjustment. In most cases, your divorce can be completed in three to six months after the completion of the separation year. The uncontested divorce is therefore the fastest way to get divorced in Germany.
For the uncontested divorce, one spouse files through his or her attorney for divorce and the other spouse only has to agree on it. To achieve an uncontested divorce, you should talk to your spouse and avoid emotional confrontations. You might need to compromise in order to agree on the consequences of your breakup and divorce. But eventually, you can work on a solution that suits both of you best, instead of letting the court decide. The main advantages of the uncontested divorce are typically:
- You can complete the divorce as fast and as affordable as possible.
- You only need one attorney for the divorce proceedings.
If you agree on the divorce and its consequences, only one spouse needs to be represented by an attorney in order to file for divorce. The spouse that only agrees to the divorce, does not need an attorney.
If you fail to agree on the consequences of the divorce, you will have a contested divorce. This means that the judge will decide on your divorce and its consequences. The court’s decision will be binding for both parties once the decision is final.
The contested divorce typically has the following disadvantages: Both spouses need to be represented by an attorney. Cost-wise of course both attorneys need to be paid, so the total costs of the divorce increase. In addition, with each divorce consequence that is decided by the court, the value in dispute rises. The court fees and the legal fees will be determined on the basis of the value in dispute. So, the more divorce consequences have to be settled in court, the more you will have to pay for your divorce later on.
How to Agree on a Divorce Consequences Agreement
The uncontested divorce and the agreement on divorce consequences usually go hand in hand. By agreeing on the consequences of the breakup and the divorce in a legally binding way, you pave the way for the uncontested divorce and avoid the contested divorce. The law allows rather wide freedom of possible legal arrangements.
Due to a high amount of accrued gains that have to be equalized, one wants to avoid increasing the value in dispute. Therefore, one should prefer agreeing on the equalization of the surplus in one’s agreement on divorce consequences. According to German law, a married couple usually has joint ownership of the increase in capital value of assets, as long as they don’t have another agreement in their marriage contract. The legal term for making individual adjustments to the legal standard is called modified joint ownership of the increase in capital value of assets.
We recommend notarizing the agreement on divorce consequences. For certain divorce consequences, especially when finances are involved, the notarization is mandatory. As soon as one agreement within the draft needs to be notarized, you have to get the whole agreement notarized. Once the agreement is notarized, it is legally bindingand you can be sure, that the agreement will be fulfilled. It is also possible to get the agreement on legally binding judicial record, but then you risk that your spouse will change her or his mind until the hearing.
What Are the Legal Consequences of Your Divorce?
These are the legal consequences of a divorce by German law:
If you have children, the parental care of both parents will continue after your breakup and even after your divorce. Only if you apply for sole custody the family court will decide on who should get the sole custody for the children. You can also limit your demand to the sole right to determine place of residence. If you decide to move out, you can decide on your own whether the children will stay with you.
If you keep joint custody as parents, the parent with whom the children will live, gets to decide in everyday matters alone. For example, when the children are allowed to watch TV. Matters of bigger significance, such as which school the child will attend, still need to be decided by the parents together.
Right of Access/ Visitation
The parent with whom the children don’t live, has the right of access to the children. The children also have a right of access to their parent. The right of access includes regularly spending time with the children. The parents should agree on an individual schedule, that also includes holidays and vacations. The more details are considered in the agreement, the smaller the risk of fights later on becomes.
From the moment of separation, you have the right to receive child support for your minor children. Children who attend school or do an apprenticeship also get child support until the age of 21, if they still live at home.
Our expert's advice:
Even if the parent liable for child support lives abroad, he or she needs to pay her or his part. The child support can also be enforced if the parent lives abroad. The Federal Office of Justice as the central public authority is responsible for contacting the public authority abroad to enforce the payments.
From the moment of separation, the legally needy spouse is entitled to separation support. There’s no obligation to start working right away. The amount of separation support is determined by the income of the couple and the marital living standard.
First, the net income of both spouses needs to be calculated. The gross income can be reduced by certain liabilities like taxes, social security and pension payments. The spouse with the higher net income typically needs to payhalf of the surplus as separation support. Employed spouses are allowed to deduct an additional 1/7 from their net income, so the typical quota for separation support is 3/7 to 4/7.
Alimony /Spousal Support
After the divorce is final, there is no separation support anymore. Now, each spouse is responsible for their own living costs. Only in certain cases specified by law, the legally needy spouse can claim post-marital support from the other spouse. In these cases, the legally needy spouse suffered matrimonial related disadvantages, that put her or him in this situation. The law recognizes the following cases:
- Spousal support to care for a child, if you take care of your toddler, section 1580 German Civil Code
- Spousal support by reason of old age, if you can’t work because of your old age, section 1571 German Civil Code
- Spousal support for illness or infirmity, section 1572 German Civil Code
- Spousal support for unemployment, section 1573 German Civil Code
- Spousal support for topping-up spousal support, if you work but your income doesn’t suffice to make a living, section 1573 German Civil Code
- Spousal support for training, further training or retraining, section 1575 German Civil Code
- Spousal support for reasons of equity, if none of the other cases applies, but it would be unfair not to grant support, you are eligible for support out of equity, for example, if you take care of your stepchild, section 1576 German Civil Code
Division of Household Goods
You also need to divide your household goods and decide on who will get which items. It is necessary to differentiate between goods that belong to both spouses and goods that belong to solely one spouse. Items that were bought for common family use, like a washing-machine, are common property of the couple and will bedivided equally. Items, that qualify as luxury or personal goods, like an expensive camera equipment, are property of one spouse and will remain as such. If you can’t agree, the court will decide on the division of the household goods.
Assignment of Pets
Pets have to be assigned to one spouse. If you can’t agree, the court will decide on who gets which pet. The judge will consider who bought the pet, who took care of it, fed it and brought it to the vet. The pet will be assigned to the spouse who can give the best possible care and has the better relationship with the pet, so it can feel comfortable and receives adequate care. There is no visitation right or right to access with pets.
Usually, one spouse will move out of the marital home. During the period of separation none of the spouses has the right to sell the apartment or the house, whether it is sole or common property. Both spouses have an equal right of use.
If you can’t agree on how to handle the marital home in the long run, the court will decide. In case the circumstances make it difficult for one spouse to move out, the court can grant the sole right of usage of the home and the other spouse has to leave. This might happen in cases of minor children being involved or in cases of domestic violence.
After the divorce is final, the home is not considered as a marital home anymore. The court will consider the right of property on who bought the home or who rented it. Under special circumstances the court can decide to grant the spouse who does not own the home to rent it, or to extend the sole right of usage.
Equalization of The Surplus
The legal standard of matrimonial property in Germany is the joint ownership of the increase in capital value of assets during the marriage. This means that the value of assets acquired during the marriage will be divided equally for the divorce.
The spouse with the higher increase of capital value of assets during the marriage has to pay half of the surplus to the other spouse. The reason for the equalization is to honor the contributions of both spouses to the marital capital value of assets during the marriage. Even if one spouse does not work, but takes care of the home and children instead, this contribution helped increase the capital value of assets. If this would lead to an unreasonable outcome, you can modify the equalization of the surplus, according to your personal situation in your agreement on divorce consequences.
Pension Rights Adjustment
The pension rights adjustment is required by law, but you can modify the adjustment to match your circumstances. The pension right adjustment does not have to be applied for short marriages. To adjust the pension rights, the spouse with more pension rights has to share the surplus with the other spouse. If the other spouse does not have her or his own pension account, the Federal Office for Employees will open a new account for the pension rights.
You can keep your married name after the divorce, section 1355 para. 5 German Civil Code. But you can also change your name back to your birth surname or the surname you had before that marriage. It is also possible to choose a double surname.
Your children will keep the surname they already have. When you get married again, it is possible to adjust their surname to the new married name in order to fully integrate them into the new family.
Matrimonial Inheritance Right & Will
As spouses you have amutual matrimonial inheritance right. Of course, you can further modify the inheritance in your personal will or in an inheritance contract with your spouse within the legal framework. The matrimonial inheritance right is terminated when you file for divorce or agree to the divorce your spouse filed. Wills specifying your inheritance right as a spouse during the marriage will also be terminated.
The German divorce law is very complexbut not every aspect has to be relevant for your personal case. Therefore, it is important to have a good overview, so you can finalize the details of your divorce with your attorney. You can ask more specific questions and understand legal explanations better. Now, that you have a general understanding of the divorce requirements, procedure and consequences, you can actively work towards a good long-term solution for your family and yourself.
Autor: Volker Beeden