Leading Expat Divorce Lawyer Team
Germany's Series of Divorce Questions
Contributors
- Christoph C. Paul leder-kappert@paul-partner.eu
- Dr. Stefan Kornmacher sk@rpm-recht.de
A. General
The legislations are Bürgerliches Gesetzbuch (BGB) – Civil Law Act and Familienrechtsverfahrensgesetz (FamFG) – Family Law Proceedings Act.
B. Divorce Process in Germany
Each spouse is eligible to apply for a Divorce.
The Grounds for Divorce in Germany are: –
- Separation of at least one year; and
- The lack of mutual understanding; and
- The will to maintain a marital cohabitance.
For separation of at least one year, no separate homes are required but a separation of “Table and Bed”.
After having lived separately for one year, each spouse can file for a divorce. The process starts with an application by a lawyer at the Family Court. The appropriate court will generally be where the underage children live or where the couple used to live. Expats with German nationality may apply at the Amtsgericht Schöneberg in Berlin.
C. Jurisdiction Requirements in Germany
No. There are no differences in divorce filing requirements between German nationals or nationals from abroad or expats.
D. Child Issues in Germany
The overarching principle guiding the Court in children’s issues are based on the “best interests of the child” (Kindeswohl). This principle includes several elements such as Continuity, Encouragement, Education, Social Contacts, Connection Tolerance to the other parent.
Yes there is. The differences are as follows: –
- Custody: The right to take decisions of certain importance (custody usually belongs to both parents even after separation or divorce).
- Care and control: The one who resides with the child (daily decisions with no further importance for the child).
- (c) Access: Both parents, usually regulated in a judicial decision or agreement of visiting rights for the parent not residing with the child.
All cases follow the same principles; the Court will try to facilitate contact and access to both parents. In cases of serious harm to the children’s wellbeing, a guardian ad litem and sometimes, a child expert may be appointed.
In most cases, the child will reside with the primary carer or the parent who spent most of the time with the child before the divorce. After the child reaches 14 years old, this decision cannot be taken against the proclaimed will of the child. Joint custody will continue. There is no legal preference for a child to reside with the mother. German Courts tend to give both parents equal responsibility and equal time – if possible.
German law distinguishes between everyday issues and basic issues like choice of school, serious medical treatment, choice of habitual residence. Basic issues are to be made by both parents, even after separation and divorce. Everyday issues may be decided by the parent who the child is residing with (i.e the parent with care and control).
Both parents will contribute to child maintenance. During the age of minority for children, maintenance is paid by the parent not residing with the child; the parent residing with the child is conveying his/her obligations by care and control.
German Courts generally follow a fixed catalogue for child maintenance, this is also known as “Düsseldorfer Tabelle”, which has been developed by all appeal courts. The Court will also take into account the regular monthly income of the parent.
E. Division of Matrimonial Assets in Germany
Matrimonial Assets include household equipment and property acquired by both spouses. This includes tangible assets like real estate, jewellery, cars, antiques and all tangible goods like bank accounts and life insurance. Property acquired by one spouse is not a matrimonial asset, even if it was bought during the marriage.
The Division of Matrimonial Assets follows the German statutory matrimonial property regime. The German statutory matrimonial property regime is the joint ownership of the increase in capital value of assets. Different property regimes are possible by a notarized marriage contract.
The Court normally tend towards equal division of surplus accrued during the marriage.
F. Spousal Maintenance in Germany
During the first year of separation, the matrimonial life standard is guaranteed – maintenance follows this principle. Both spouses share their income. After the first year, maintenance is owed by the following principle – German law does not distinguish between wife or husband when it comes to maintenance, the spouse who earns less has the right to receive maintenance, independent whether he/she is the husband or wife.
During the first year of separation, the matrimonial life standard is guaranteed – maintenance follows this principle. Both spouses share their income. After the first year, maintenance is owed by the following principle – German law does not distinguish between wife or husband when it comes to maintenance, the spouse who earns less has the right to receive maintenance, independent whether he/she is the husband or wife.
The overarching principles guiding the German Courts are the possibility to maintain for a certain period of time (this is dependent on the duration of the marriage) and the same lifestyle both husband and wife had during the marriage. After divorce, each spouse is also obliged to care for his/her own income – as long as he or she is able to earn sufficient money.
- i. An (ex-)spouse cannot earn enough because he/she cares for the children;
- ii. The (ex-)spouse has suffered marriage related disadvantages (e.g. giving up a career because of the children);
- There is a dramatic imbalance between the income of both spouses – depending on special conditions, a Court may claim marital solidarity for some time.
Payment of spousal maintenance in acrimonious cases in Germany can be facilitated by way of Court Orders executing garnishment of income or bank accounts.