Divorce - Germany

TABLE OF CONTENTS 1. What are the conditions for obtaining a divorce?  2. What are the grounds for divorce?  3. What are the consequences of a divorce as regards:  3.a) the personal relations between the spouses (e.g. as regards the surname)  3.b) the division of the spouses' property  3.c) the minor children of the spouses (as regards parental responsibility and maintenance claims)  3.d) the obligation to pay maintenance to the other spouse  4. What does "legal separation " mean in practical terms?  5. What are the conditions for a "legal separation "?  6. What are the legal consequences of legal separation?  7. What does the term "marriage annulment" mean in practice?  8. What are the conditions for marriage annulment?  9. What are the legal consequences of marriage annulment?  10. Are there alternative means for solving problems relating to a divorce without going to court?  11. Where must the application for divorce/marriage annulment be lodged?  12. Can I obtain legal aid?  13. Is it possible to appeal against a decision relating to divorce/marriage annulment?  14. What must I do to have a decision on divorce/marriage annulment issued by a court in another Member State recognised in Germany?  15. To which court should I turn to oppose the recognition of a decision on divorce/marriage annulment issued by a court in another Member State? Which procedure applies in this case?  16. Which is the applicable law in divorce proceedings between spouses who do not live in Germany or who are of different nationalities?

 

1. What are the conditions for obtaining a divorce?

A marriage can only be dissolved by a court judgment following an application by one or both spouses (Section 1564(1) , first sentence, of the German Civil Code (Bürgerliches Gesetzbuch - BGB).

The marriage can be dissolved if it has broken down. The marriage has broken down if the parties to the marriage are no longer cohabiting and if it cannot be expected that the parties will resume matrimonial cohabitation (Section 1565 (1) BGB). There is an irrefutable presumption that the marriage has broken down if the parties have been living apart for one year and both apply for divorce or if the respondent consents to the divorce. After a separation period of three years, there is an irrefutable presumption that the marriage has broken down, without any comments being required from the parties to the proceedings (Section 1566 (2) BGB). A continuation of a marriage that has broken down is possible if and as long as the maintenance of the marriage is, exceptionally, necessary on special grounds in the interests of the minor children of the marriage. The same applies if and as long as divorce would, for the respondent who is not consenting thereto, constitute such severe hardship because of exceptional circumstances that the maintenance of the marriage, exceptionally, appears necessary even taking the applicant's interests into account (Section 1568 BGB).

Pursuant to Section 1567 (1) , first sentence, BGB, it is a requirement of living apart that there is no domestic cohabitation between the spouses and one spouse evidently does not want there to be such cohabitation because he/she refuses matrimonial cohabitation. These circumstances must if necessary be proved; problems exist primarily in the case of living apart within the matrimonial home, which is specifically admitted by law (Section 1567 (1) , second sentence, BGB).

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2. What are the grounds for divorce?

The only ground for divorce recognised by Germany law is the breakdown of the marriage.

There is no divorce on the basis of fault on the part of a spouse.

3. What are the consequences of a divorce as regards:

3.a) the personal relations between the spouses (e.g. as regards the surname)

A divorced spouse retains the married name chosen by the spouses when concluding the marriage. By declaration made to the civil registrar, he may again adopt his name at birth or the name which he used until the married name was determined, or he may place his name at birth in front of the married name or add it to the married name (Section 1355(5) BGB).

If the conditions for obtaining a divorce are met and the testator has applied for or consented to the divorce, the spouse's statutory right of inheritance is excluded (Section 1933 BGB). A will in favour of the spouse is invalid in this case, unless the testator made it also to cover the event of divorce (Section 2077 BGB).

3.b) the division of the spouses' property

If the spouses live under the statutory matrimonial property regime, the increase in the value of such property achieved during the period of the marriage is divided between the spouses on divorce (Sections 1372 et seq. BGB). There is an exception if the division of the increase in value would be grossly unfair. This may be the case in particular if the spouse who has achieved the smaller increase in value has for a relatively long period culpably failed to comply with the economic requirements arising from the matrimonial relationship (Section 1381 BGB). Any fault with regard to the divorce is not taken into account.

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If the spouses have agreed upon community of property, the spouses must divide their entire property. There is no provision for penalties against the spouse who is at fault in respect of the divorce.

The matrimonial residence may be allocated to one spouse by the court if the spouses fail to agree (Section 1 of the German Household Goods Regulations (Hausratsverordnung) ). In the case of leased property, the lease may be amended so as to create rights. The court decides in this case in its reasonable discretion.

As regards household goods, those goods which are in joint ownership shall be divided in a just and expedient manner by the court. Items of household goods belonging to one spouse are allocated to the other spouse if that spouse depends on continuing to use them and if the transfer is reasonable for the owner.

Pension entitlements acquired by the spouses during the marriage (e.g. entitlements under the statutory pension scheme, pension rights and entitlements to pension payments from the company pension scheme or from private pension insurance policies) are divided on divorce by way of equalisation of provision.

3.c) the minor children of the spouses (as regards parental responsibility and maintenance claims)

aa) Parental responsibility

If parents have joint care of their children and get divorced, the joint care continues. Apart from cases where the welfare of the children is endangered, the joint care is only examined and decided upon by the court in cases in which one parent applies to be awarded sole parental care. Such an application must be upheld if it is to be expected that the cancellation of joint care and the transfer to the applicant best serves the needs of welfare. German law assumes that it is normally helpful for the child's welfare to have contact with both parents and it therefore guarantees a right on the part of the child to have contact with both parents and a right and an obligation for both parents to have contact.

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bb) Maintenance claims

Parents are obliged to provide maintenance for their children (Section 1601 BGB). Children are entitled to maintenance if they are incapable of maintaining themselves (Section 1602 BGB). The parents' maintenance obligation exists in the context of their ability to pay (Section 1603 BGB). However, parents have an increased ability to pay in respect of their children, i.e. it is the achievable income, not merely the available income, which is decisive (Section 1603 (2) BGB). The parents must in principle provide maintenance for children pro rata in accordance with their earnings and financial circumstances. However, a parent looking after a child performs his maintenance obligation by caring for and looking after the child (Section 1606 (3) BGB).

The maintenance of the child covers all the child's living requirements including the costs of an appropriate education (Section 1610 BGB).

3.d) the obligation to pay maintenance to the other spouse

A spouse must provide for his own maintenance after divorce (Sections 1569, 1577 BGB). He need therefore only engage in appropriate gainful employment. He must however undergo education, further training or retraining where this is necessary in order to commence appropriate gainful employment and where it can be expected that the education will be successfully concluded (Section 1574 (3) BGB).

A divorced spouse is entitled to maintenance in the following circumstances:

• as long as, and to the extent that, he cannot be expected to engage in gainful employment because he is looking after a joint child (Section 1570 BGB) or because of illness or weakness in his physical or mental powers at the time of the divorce (Section 1572 BGB) ,
• if he can no longer be expected to engage in gainful employment because of his age at the time of the divorce (Section 1571 BGB) ,
• as long as and to the extent that the divorced spouse is undergoing education, further training or retraining in order to make up for disadvantages caused by marriage. This is however conditional upon his commencing the education, further training or retaining as soon as possible so as to achieve appropriate gainful employment guaranteeing him a lasting living, and the education must be expected to be successfully concluded,
• as long as and to the extent that the spouse is unable to find any appropriate gainful employment after the divorce (Section 1573 (1) BGB) ,
• to the extent that and as long as he cannot, on other serious grounds, be expected to engage in gainful employment and it would be grossly inequitable to refuse maintenance, taking account of the interests of both spouses,
• to the extent that the income from appropriate gainful employment is insufficient to cover the full cost of maintenance (Section 1573 (2) BGB).

The level of the maintenance is determined by the matrimonial living conditions and also covers the costs of appropriate insurance against sickness and the need for care as well as old age and reduced earning capacity (Section 1578 BGB). If the spouse who is obliged to provide maintenance is incapable, in accordance with his earnings and financial circumstances and having regard to his other obligations, of providing maintenance to the entitled party without endangering his own appropriate maintenance, he need only provide maintenance to the extent that it is equitable, having regard to the needs and to the earning and financial circumstances of the divorced spouses (Section 1581, first sentence, BGB).

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4. What does "legal separation " mean in practical terms?

Either spouse may live separately, if he wishes, without any particular formalities. There is no provision for any judicial determination.

5. What are the conditions for a "legal separation "?

The spouses must live separately. The spouses are living separately if they no longer have a joint household and if one spouse refuses matrimonial relations.

6. What are the legal consequences of legal separation?

If the spouses are living separately or if one of them wishes to live separately, a spouse may demand that the other spouse leaves him the matrimonial home, or a part of it, for his sole use provided this is necessary in order to prevent unreasonable hardship. It is necessary to take account here of the ownership circumstances in respect of the residence and of rights of residence. It will thus be possible for a residence to be allocated to the wife if the only other possibility was for her to stay in a women's refuge. If one spouse has physically mistreated or threatened the other one, the entire residence must normally be allocated to the injured or threatened party for that party's sole use. The allocation of the residence is not however for the purpose of preparing and for facilitating the divorce.

The utilisation of the household goods may also be regulated for the period of the separation. Either spouse may demand that the other spouse hands over to him the household items belonging to him. He must however allow the other spouse to use them if that party requires them in order to maintain his new separate household and if it is equitable in the individual case to allow him to have them.

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7. What does the term "marriage annulment" mean in practice?

A marriage can only be annulled by a court judgment following an application. There is no declaration of nullity.

8. What are the conditions for marriage annulment?

Pursuant to Section 1314 BGB, the following constitute grounds for marriage annulment:

• One spouse is not of full age or has not been validly exempted from this requirement.
• One spouse is legally incompetent.
• One spouse is already married.
• The spouses are directly related to one another or are full or half siblings, even if the family relationship has been extinguished by adoption.
• The parties entering into the marriage have not made the declarations about entering into marriage personally and present at the same time before the civil registrar or have made those declarations subject to a condition or a time restriction.
• One spouse, at the time when he entered into the marriage, was unconscious or his mental faculties were temporarily disturbed.
• One spouse was unaware, at the time when he entered into the marriage, that he was entering into a marriage.
• One spouse has been persuaded to enter into the marriage as a result of fraud.
• One spouse has been unlawfully persuaded to enter into the marriage as a result of threats.
• Both spouses agreed, at the time when they entered into the marriage, that they did not intend to have a matrimonial relationship.

A distinction must be made from the cases in which no marriage has come into existence. This is the case in the following circumstances:

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• if the marriage has not been entered into before a civil registrar,
• the declarations are made in front of a civil registrar who has made it clear that he is not prepared to be involved in the concluding of the marriage,
• the engaged parties have not made any declarations during the wedding which are directed at entering into the marriage,
• where a marriage is entered into between two persons of the same sex. For same-sex couples, there is merely the possibility of a registered partnership for life. This is not however a marriage.

9. What are the legal consequences of marriage annulment?

An equalisation of the increase in value of property takes place also where the marriage is annulled, unless this would be grossly inequitable in view of the circumstances when the marriage was entered into or, in the case of a bigamous marriage, in view of the interests of the third party (Section 1318 (3) BGB).

In respect of household goods and the matrimonial home, the arrangements apply in the same way as with divorce, and the circumstances in which the marriage was entered into and, in the case of a bigamous marriage, the interests of the third party must particularly be taken into account here (Section 1318 (4) BGB).

An equalisation of provision - division of the pension entitlements acquired by the spouses during the marriage - takes place only if this would not be grossly inequitable (Section 1318 (3) BGB).

The spouse's right of inheritance expires as in the case of a divorce, namely when the conditions for the annulment exist and a corresponding application has been served on the spouses. Additionally, the spouse's right of inheritance also does not apply if the inheriting spouse was already aware, at the time of entering into the marriage, of the grounds for annulment: legal incapacity, bigamy, family relationship, breach of formalities or mental disturbance (Section 1318 (5) BGB).

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As with divorce, maintenance rights exist pursuant to Section 1318 (2) BGB in the following circumstances:

• in favour of a spouse who was not aware of the reason for the annulment of the marriage or who, in cases of fraud and unlawful threats, has been deceived or threatened by the other spouse or with that spouse's knowledge,
• in favour of both spouses in the event of breach of the prohibitions on marriage in the case of bigamous marriage and family relationship and in the event of contravention of the formalities for entering into a marriage, if both spouses were aware that the marriage was capable of being annulled; this does not apply in the event of breach of the prohibition against marriage in the case of bigamous marriage where a spouse's claim for maintenance would adversely affect a corresponding claim by the third spouse.

10. Are there alternative means for solving problems relating to a divorce without going to court?

In the event of a divorce, the parents are entitled to advice in the context of assistance for children and young persons. The advice is intended to assist parents who are living apart or who are divorced to create the conditions for compliance with parental responsibility in a way beneficial to the welfare of the child or the young person. The parents are supported, with appropriate involvement of the child or young person concerned, in developing an agreed plan for the provision of parental care. There is a database of all advice centres at www.dajeb.de. It is also possible to resolve conflict and come to an amicable agreement with the aid of mediation. More information about family mediation can be found at www.bafm-mediation.de.

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11. Where must the application for divorce/marriage annulment be lodged?

The application for divorce/ marriage annulment must in principle be lodged at the district court/family court (Section 606 of the German Rules of Civil Procedure (Zivilprozessordnung) , Section 23 (b) of the German Judicature Act (Gerichtsverfassungsgesetz) ). The family court in whose district the spouses have their usual joint residence normally has geographical jurisdiction.

12. Can I obtain legal aid?

A citizen whose personal and financial circumstances are such that he is unable to afford the costs of conducting proceedings or who can only afford to pay part of the costs or can only pay them in instalments can claim legal aid inter alia in respect of proceedings before the civil courts. This is conditional upon the intended legal prosecution or legal defence having sufficient prospects of success and not appearing malicious. This guarantees that those whose are financially less well off also have access to the courts. Depending on the available income, legal aid for the proceedings pays the party's own contribution to the court costs and the costs of the party's own lawyer, in whole or in part.

13. Is it possible to appeal against a decision relating to divorce/marriage annulment?

Yes. The general provisions in respect of legal remedies apply in respect of the decision relating to divorce or marriage annulment, i.e. is an appeal permissible subject to the provisions of Section 511 of the German Rules of Civil Procedure. The appeal is decided by the Higher Regional Court.

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14. What must I do to have a decision on divorce/marriage annulment issued by a court in another Member State recognised in Germany?

Such a decision (unless issued in Denmark) is automatically recognised in the Federal Republic of Germany in accordance with Council Regulation (EC) No 1347/2000 of 29 May 2000, in other words without separate recognition proceedings being conducted. However, the Regulation provides in principle that the judicial proceedings for divorce or marriage annulment have been commenced after 1 March 2001. Decisions from Denmark still require separate recognition proceedings.

15. To which court should I turn to oppose the recognition of a decision on divorce/marriage annulment issued by a court in another Member State? Which procedure applies in this case?

Within the scope of application of Council Regulation (EC) No 1347/2000 of 29 May 2000, the court with geographical jurisdiction for the purposes of the recognition or non-recognition of such a decision is the family court within whose area of jurisdiction:

• the respondent is normally resident or
• if no such jurisdiction applies, there is an evident interest in the determination,
• or else the court within the district of the Supreme Court which has been requested to make a decision.

The applicant may apply directly to the court. In proceedings before the family court, only the applicant is given an opportunity to express his views on the application for the granting of the enforcement clause or for a determination as to whether the decision is to be recognised.

16. Which is the applicable law in divorce proceedings between spouses who do not live in Germany or who are of different nationalities?

The issue of which law is applicable to the requirements for and the consequences of a divorce where the facts are connected with the law of another state is determined by Section 17 of the German Introductory Act on the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB) ). The divorce is primarily subject to the law which, at the time when the divorce petition become legally pending, is applicable for the purposes of the "general effects of the marriage". Where no admissible choice of law has been made by the spouses, the general effects of the marriage are in principle subject to the law of the state of which both spouses are nationals or were last nationals during the marriage, if either of them is still a national of this state. If no joint nationality exists for this purpose, the general effects of the marriage are subject to the following law:

• the law of the state in which both spouses are usually resident or were last usually resident during the marriage, if either of them is still usually resident there, in the alternative
• the law of the state with which the spouses otherwise are jointly most closely associated.

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Last update: 02-06-2006