Introduction to German Divorce Law

• If you are familiar with German divorce law, you will have a better understanding of the divorce process. Additionally, you will be able to communicate more effectively with your lawyer and also be able to more effectively contribute to your divorce proceedings.
• 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 must be represented by an attorney. Nowadays, you can also appoint your attorney online.
• The best way to achieve a mutual agreement divorce is by amicably regulating the rights and obligations associated with your separation and divorce in a divorce settlement agreement.

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.

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.

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.

You can only dissolve your marriage by a judicial decision. Typically, the family court, as a subdivision of the local district court, is responsible. Only when the family court's divorce decree can no longer be contested (after one month), is your marriage legally divorced and dissolved. The requirements for a divorce are stipulated in sections 1565 – 1568 of the German Civil Code (BGB).

Your marriage can be divorced if it has failed. This means that your marital union has been dissolved and it is not expected that either spouse wishes to restore it (§ 1565 para. I s. 1 BGB). If you and your spouse have lived apart for a year and apply for divorce by mutual consent, the law irrefutably presumes that your marriage has failed (§ 1566 para. I BGB).

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.

If you have been separated for more than three years, the law irrefutably presumes that your marriage has failed (§ 1566 para. II BGB). In this case, you do not need to further prove the breakdown of your marriage. Therefore, you can be legally divorced even against the will of your spouse.

If you want to get a divorce, one spouse has to file for divorce at the locally responsible court. Typically, the court in the district where the couple last resided has jurisdiction. If there is a joint minor child or children, the district court in whose district the children live is responsible. If you and your spouse live abroad, you must file for divorce at the District Court of 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 one of you does not have German citizenship or neither of you has German citizenship, but both of you live in Germany, German law is usually applied. 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.

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.

If your marriage is irretrievably broken, it can be dissolved. In special exceptional cases, the court will refuse to divorce the couple, even if it is clear that the marriage is irretrievably broken. These are cases where it would be unreasonable for one spouse to get divorced immediately. In these situations, the contesting spouse can delay your divorce, but not indefinitely prevent it. Possible exceptional cases might include:

• 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.

In front of the family court you are obligated to be represented by 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. For agreeing to the divorce at the court appointment, your spouse does not need their own lawyer.

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.

The duration of the divorce proceedings depends on various factors, such as the workload of the court, but also on you as a couple. If you can agree on matters concerning the consequences of your divorce, like alimony or your marital home, the court does not need to assess these issues separately. It only needs to decide on the adjustment of pension rights. In most cases, your divorce can be completed within three to six months after the separation year is completed. Therefore, an uncontested divorce is the fastest way to get divorced in Germany.

For an uncontested divorce, one spouse files the divorce petition through their lawyer, and the other spouse only needs to agree. To achieve an uncontested divorce, you should talk to your spouse and avoid emotional confrontations. You might need to compromise to agree on the consequences of your separation and divorce. Ultimately, however, you can work on a solution that is best suited for both of you, instead of letting the court decide. The main advantages of an uncontested divorce typically include:

• You can complete the divorce as quickly and cost-effectively as possible.
• You only need one lawyer for the divorce proceedings.

If you cannot 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 is binding on both parties once it becomes final.

A contested divorce typically has the following disadvantages: Both spouses must be represented by a lawyer. Of course, both lawyers must be paid, so the total cost of the divorce increases. Moreover, with each divorce consequence decided by the court, the value of the dispute increases. The court and legal fees are determined based on this value of the dispute. The more divorce consequences that need to be settled in court, the higher the costs you will have to pay for your divorce.

The uncontested divorce and the agreement on divorce consequences usually go hand in hand. By legally binding yourself to the consequences of the separation and divorce, you pave the way for an uncontested divorce and avoid a contested one. The law allows quite a lot of freedom for possible legal arrangements.

Example:

Faced with a high gain, you want to avoid a court dispute and a high procedural value caused by the gain. Therefore, you regulate the equalization of gains in the divorce consequences agreement by mutual consent. Divorce law refers to this as "modified" gain equalization. You have the freedom to modify the statutory default gain equalization to take into account your individual circumstances so that each partner can live with the compromise.

It is advisable to have the divorce consequences agreement notarized. As far as financial matters are concerned, notarization is even mandatory. Only then is your agreement legally binding. An additional advantage is that you can rely on everything staying as agreed upon until the divorce hearing. Alternatively, you can also have the divorce consequences agreement recorded in court during the oral hearing. Even then, the agreement is legally binding.

These are the legal consequences of a divorce by German law:

Even after your separation and divorce, parental care for your joint child continues. Only if you apply for sole custody will the family court make a decision. You can also apply solely for the right to determine your child's place of residence. If you decide to move, you can decide for yourself whether the children will stay with you.

As long as joint custody continues, you will in the future decide alone in matters of daily life, e.g., when the child is allowed to watch TV. Only in matters of significant importance for the child is mutual consent with your spouse required, e.g., regarding which school the child will attend in the future.

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.

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 pay half 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.

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.

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 be divided 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.

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.

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.

The pension rights adjustment is required by law and is automatically carried out in the event of a divorce. Exceptions are marriages that last less than 3 years, or if you and your spouse do not possess German citizenship and your country of origin does not recognize pension rights adjustment. If one of these cases applies, the pension rights adjustment would only be carried out upon the request of one of the spouses by the court.

However, the pension rights adjustment can be partially modified or completely excluded if both spouses agree. The waiver can either be documented through a notarially certified divorce consequences agreement or recorded during the divorce hearing itself. However, the waiver is subject to judicial review to ensure that the exclusion is not contrary to public morals.

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.

As spouses you have a mutual 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 complex but 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.