This helpful guide explains the process of getting a divorce in Germany, from how much an attorney costs, through to filing for child custody.
It is important that expats fully understand the process and implications of getting a divorce in Germany. This may, for instance, affect their right to reside in the country, particularly if they have been married for less than three years. This helpful guide explains the whole process as well as alternatives that you might want to consider.
The guide covers the following:
- An overview of divorce in Germany
- The legal grounds for divorce in Germany
- What to do if your visa depends on your marriage
- Getting a divorce in Germany: the process
- Things to consider when getting a divorce in Germany
- Alternatives to getting a divorce in Germany
- Useful resources
Schlun & Elseven
Schlun & Elseven are a well-established law firm offering clear and professional legal advice for expats living in Germany. Their expert team can help with every step of your divorce proceedings, ensuring you have the right guidance and support for you and your family.
An overview of divorce in Germany
Research suggests that divorce is becoming less common in Germany. Figures from the Federal Statistical Office of Germany (Statistisches Bundesamt Destatis), show that a total of 187,640 marriages were dissolved in 2011, compared with 148,066 in 2018; a decrease of around 21%.
According to Eurostat, the EU statistics agency, divorce rates in Germany have historically been slightly higher than the EU average. This looks to be changing, however. For instance, in 2010 the divorce rate in Germany was 2.3 per 1,000 inhabitants, above the EU average of 2.0. In 2017, however, the divorce rate had fallen to 1.9 per 1,000 inhabitants, below the EU average of 2.0.
Statistics from Destatis also show that marriages now appear to last longer than in previous decades. Those who split up these days have been together on average nearly 15 years, while couples who separated 20 years ago stayed together on average 12 years.
The legal grounds for divorce in Germany
In German civil law, German courts have jurisdiction over divorce cases if the couple are EU nationals and have their permanent residence in Germany. The only grounds for divorce recognized by German law is the breakdown of the marriage.
Breakdown of the marriage
While fault doesn’t play a part in divorce proceedings, the courts will take into account the behavior of both spouses when deciding whether there has been a marital breakdown. For a marriage to qualify as broken down, the couple must no longer have any conjugal relations, and they do not expect to restore their relationship.
In order to prove that the marriage has broken down, the spouses have to live apart for at least one year (Trennungsjahr) if both of them want a divorce, or living apart for three years if only one of the partners wants a divorce. Living apart means spouses must stay in separate properties, eat no common meals together, perform no services for the other spouse, and have no other similarities in their daily lives.
Cases of unbearable hardship
Couples don’t have to be separated for a year to divorce if there are cases of ‘unbearable hardship’. This would include things like a spouse experiencing frequent mistreatment and abuse, or living with a spouse suffering with alcoholism.
Even in cases of unbearable hardship, however, there are some barriers to getting a divorce. For instance, the couple might need to wait until a year after they have separated – regardless of any unbearable hardship – in the interests of any young children they have.
Divorce may be denied altogether in circumstances where one spouse might cause the other significant hardship; for example, if one partner is suffering from a serious illness and a divorce may affect their health.
What to do if your visa depends on your marriage
If your right to live in Germany is solely due to your marriage or you came to Germany through family reunification, you may lose your entitlement to reside there if you get divorced; especially if you have been married for less than three years.
If you have been married for three years or more, however, you can renew your residence permit for a year after the divorce. After this period, you can apply for the right to reside in Germany independently.
There are some circumstances where your residence permit will be extended, even if you have been married for less than three years. This applies, for example, if you have a child with your spouse, if you have terminated the marriage because your partner has been certifiably violent against you, or if you are a skilled worker or vocational trainee and have your permit extended.
Getting a divorce in Germany: the process
Getting divorced is relatively straightforward in Germany. If circumstances are simple, the marriage can be officially dissolved after four to six months. If it is a long-term marriage, however, with wealthy partners who have many disputes over assets, the process can easily take a year or more. This is due to the court having to step in and make decisions on behalf of the two spouses.
Necessary documentation and paperwork
The first step of getting a divorce in Germany is hiring a lawyer who will deal with the divorce application. This should be lodged at the local court (Amtsgericht) or family court (Familiengericht). You will usually have to use the local court that holds jurisdiction of the area where the matrimonial home is located.
You will need to submit the following documentation in order to start the divorce proceedings in Germany:
- Divorce application;
- Marriage certificate (get this translated by lingoking);
- The birth certificates (or certified copies) of any children you have (get this translated by lingoking).
It is important to know that you must translate all documents into German by a certified interpreter such as lingoking. The court will then review your application and send it to your partner, asking for their response. During this process, the court will also send you and your partner some additional forms in order to calculate any pension rights that may need to be transferred.
This initial process can take up to six months, and when it is finished, you will be given a divorce appointment. You, your spouse, and your lawyer must attend the court on this date. The length of the divorce proceedings will vary depending on how long the marriage lasted, whether you and your spouse are in agreement of how assets are divided, and how much money is at stake.
Cost of getting a divorce in Germany
The costs of getting a divorce in Germany will depend on your circumstances. Factors such as how much both spouses earn and how many dependent children will be affected will be taken into account.
In general, court and legal costs are said to sit between €1,000 and €3,000; this usually has to be split between the couple. If there are disagreements, however, these fees will increase. This is because the process will take longer, and therefore incur more work (and fees) for the lawyers. As a result, some people may choose to represent themselves in order to cut costs. However, if the divorce is acrimonious and large sums of money, paperwork, and complex circumstances are involved, it might be best to let a professional deal with your case.
For those on low incomes, legal aid (Verfahrenskostenhilfe) may be available, which will either reduce costs or cancel them altogether. You will have to make an application to the state for legal aid, and a lawyer can help you with this.
Things to consider when getting a divorce in Germany
As with any country, there are important factors to consider when undergoing a divorce in Germany. These will, of course, depend on your individual circumstances, such as whether you share children or property together. Here are some of the main things to think about.
Custody of children and child support
If you have children, they will also be affected by your decision to get divorced. As a general rule, both parents will have joint custody of their children, even after the divorce has gone through.
Joint custody means that parents must make decisions together about major things like the children’s religion, medical care, and which school they attend. The parent who houses the child, however, can make minor day-to-day decisions.
If parents cannot agree on these larger issues, the court can then decide which parent should make these decisions. It’s important to note that a parent will only be granted sole custody of a child in extreme cases; for example, if one parent has been abusive towards the child.
Whichever parent does not live with the child will have to pay child support. This is payable from when the child is born up until they turn 18 or earn money for themselves. The Düsseldorfer Tabelle guidelines will help determine how much child support a parent will need to pay in Germany. This amount will depend on the parent’s income and the age of the child. As a general rule, the younger the child and the more the parent earns, the larger the amount of child maintenance.
The court considers all income relevant, not only the parent’s salary, but also any benefit payments, savings interest, and pension income they have. If a parent is self-employed or receives money from rent, their income will be calculated as an average of the last three years. Employed parents will have their last 12 months’ salary taken into account. Owning the property they live in can also have an influence. In this instance, the court will take into account the saved rent when calculating how much child support they can afford.
Your child custody situation may mean that you require more childcare provision.
The court may decide that one partner is eligible to receive spousal maintenance. These are payments that can go towards any expenses the spouse has, and is completely separate, from child support.
Whichever partner earns less usually receives spousal maintenance. The court will also consider whether the divorce will adversely affect their lives. A spouse only has the right to spousal maintenance if they meet the following criteria:
- They have taken care of the children;
- He or she cannot earn a living due to their age, illness, or weakness;
- They lost a job and cannot find another one;
- They need maintenance for further education.
The amount of time that a spouse receives maintenance depends on a number of factors. These include how disadvantaged the spouse is from the divorce, how long the marriage lasted, who earned the income and who looked after the household, and how long the spouse looked after the children for.
In Germany, spouses can no longer request life-long maintenance, so they will receive money for a limited amount of time only. If a spouse receives maintenance for looking after a child, they must get a job once the child is three years old; this, therefore, limits how much they will receive.
It is important to bear in mind that courts view spousal maintenance differently from state to state. Courts in the north of Germany, for instance, are generally stricter and more restrictive than courts in the south of the country.
When getting a divorce in Germany, you will also need to consider the dividing of your possessions between you and your partner. Each spouse can keep any assets they have earned before, or accrued during, the marriage. The couple might share any increases in value during the marriage, however.
For instance, if one partner has an expensive work of art, they will remain the sole proprietor of the item. However, if the artwork increased in value by €5,000 during the marriage, the couple will share this extra amount. This will not occur, however, if the court deems this grossly unfair to one spouse; even if they caused the divorce.
If both spouses agreed to own their property jointly, they must divide it in its entirety. If the spouses cannot agree on what to do with their matrimonial home, the court may award it to one of them. As for the contents of the house, the court will divide items equally between both partners.
The court will also take into account pensions. If either spouse accrues pension rights during the marriage, for example, they acquire the rights to an occupational pension fund, they must split this as part of the divorce, too. Rather than handing over money directly from the pension, the courts may decide that the spouse with less money is entitled to more benefits, or increased spousal maintenance.
Alternatives to getting a divorce in Germany
Divorce is not the only solution to ending a marriage in Germany. The German legislation also allows marriage annulment and legal separation. There are no legal formalities for a legal separation – one of the spouses must simply move out and live separately. However, only a German court can declare a marriage annulment.
Getting an annulment
In some circumstances, a judge can grant an annulment if there is a suitable reason for the dissolution of the marriage. There are several requirements for annulment in German law, as follows:
- At the time of the marriage, one spouse had not reached the age of majority or had not been validly exempted from this requirement;
- One spouse did not have the capacity to contract;
- At the time of the marriage, one spouse was already married;
- The spouses are related to one another in direct line of descent, or are full or half-siblings; even if the family relationship has been extinguished by adoption;
- The spouses did not make their declarations of marriage together and in person before the registrar; or made those declarations subject to a condition or time limit;
- One spouse was unconscious or their mental faculties were temporarily disturbed when they entered into the marriage;
- At the time of the marriage ceremony, one spouse did not know that a marriage was taking place;
- One spouse was induced to enter into the marriage by deceit;
- One spouse was unlawfully induced to enter into the marriage by duress;
- At the time of the marriage, both spouses agreed that they did not intend to enter into a matrimonial relationship.
Prices for annulments can vary. You will need to hire a solicitor or lawyer to file your application; the more complicated the case, the more they will charge. The process does, however, tend to be less expensive than divorce proceedings.
Those on low incomes may be able to claim legal aid and other help; your earnings will determine what help you get.
Hiring a divorce mediator
While it is not a common option in Germany, some couples may prefer to settle their separation with divorce mediation, as it saves having to go to court. A qualified and independent mediator will help the couple find a consensual solution to the division of assets and other matters.
Mediators have no power to impose any agreement on the spouses, and if the couple cannot come to a mutual agreement, the court will settle the divorce. You will need to tell the court if you tried and failed to settle your conflicts in mediation. As the mediation process is confidential, you cannot use matters that you discussed in court; unless in extreme cases, such as to prevent danger to a child.
The cost of mediation can vary, however, you could expect to pay anything between €80 and €200 per hour.
If you are looking for a mediator service, the Federal Association for Family Mediation (Bundes-Arbeitsgemeinschaft für Familien-Mediation; link in German), is a good place to start.