Divorce law in Germany focuses on whether the marriage has irretrievably broken down and causes are not considered. We provide an overview to getting a divorce in Germany.
When getting a divorce in Germany, the causes of the divorce are not considered. Rather German divorce law is solely based on whether the marriage has irretrievably broken.
An overview of divorce in Germany
The divorce rate in Germany has historically been slightly higher than the EU average. According to Eurostat, the EU statistics agency, the rate of divorce in 1970 was 1.3 per 1,000 inhabitants against an average of 1.0 for the 27 countries that make up the EU today. In 1990 this had risen to 1.9 divorces per 1,000 people (versus 1.6 in the wider European area) and in 2010 the divorce rate in Germany was 2.3 per 1,000 inhabitants, against an EU average of 2.0.
According to German civil law, German courts have jurisdiction over divorce cases if the couple are EU nationals and have their permanent residence in Germany.
What it means
All disputes relating to marriage, separation and divorce are to be dealt with in future by a grand family court.
Generally the principle of personal responsibility applies and each spouse is responsible for their own maintenance after a divorce. However, in some cases the judge may award post-marital spousal support. This would usually happen in cases where a parent is looking after a child or is unable to work due to illness or physical or mental weakness or age.
Additionally, if one of the spouses is undergoing educational advancement or training in order to make up for disadvantages caused by the marriage, they may be awarded spousal support. Any maintenance awards take into consideration the financial means of the supporting spouse and levels awarded must be on the basis of reasonableness.
It should be noted that while calculations of a spouses net income take into account personal commitments, not all of an individual’s debts are taken into consideration, thus support payments may represent a significant part of a person’s disposable income.
Where no notarized marriage contract exists each party is entitled to be compensated for half of the capital value of the assets acquired by the spouses during the marriage. This also takes into account any appreciation in value of the assets.
Inheritance rights are also affected by the finalising of a divorce decree, as it will terminate any inheritance rights that existed during the marriage. If a will in favour of a spouse exists it will be invalidated by the divorce, unless the testator expressly included divorce in the terms.
Where parents have joint care of their children this will continue after the separation and divorce. German law assumes that children’s interests are best served when they have contact with both parents. Joint care can be challenged if one parent applies for sole custody and in that situation the welfare of the child or children is assessed.
How to get a divorce in Germany
The sole ground for divorce in Germany is disruption of conjugal relationships to the point where it is not expected that the spouses will restore the matrimonial relationship.
When the parties have been separated for at least one year (Trennungsjahr) and both agree to a divorce it is presumed that the marriage is irreconcilably broken and an application can be made for a divorce. Where one party is opposed however, the period of separation increases to three years. After a separation of at least three years, it is presumed that the marriage is irreconcilably broken, even if a spouse opposes the divorce.
In rare cases it is possible to get a divorce within 12 months. These so-called hardship divorces apply in cases where violence or other unreasonable behaviour is involved.
Applications for divorce are usually lodged at the district or family court where the spouses have their joint residence.
Both spouses in a divorce case must generally be represented by a lawyer, as an unrepresented party cannot make requests to the court. However, if both parties agree to the divorce then only one lawyer need be present.
Notwithstanding, bearing in mind that the financial effects of a divorce settlement can be complicated it is advisable for lawyers to be used by both parties.
During the period of separation spouses can claim for continued financial support equivalent to that which existed while they were living together. This support includes covering basic needs for the spouse and children (including accommodation, food, clothes, medical support, health and pension insurance, housekeeping allowances and pocket money).
In matrimonial cases in Germany the judge considers the issues of custody, child support, spousal support and retirement benefits (considered part of the marital property). Other issues, such as division of marital property (money, bank accounts, debts etc.) are only addressed if the court is petitioned to do so.
If the divorce is uncontested the judge will likely grant the petition at the initial hearing. Either party then has one month to appeal the decision before the divorce becomes final. However, if both parties are represented by a lawyer the one month period can be waived.
If the divorce is contested the judge will make a judgment whether the marriage has in fact irretrievably broken down. This can be taken as true if the parties have lived separately for three years. Again, if the judge does grant a divorce either party can appeal during the month immediately after the decision.