Divorce in Germany
Divorce in Germany can be a complicated and lengthy process. The grounds for divorce in Germany come from § 1565 BGB, which allows for divorce when the marriage has “broken down”. Our page on “Divorce Lawyers in Germany” outlines what this looks like in practice. We also provide information on these pages on other aspects of divorce: pension rights equalisation, the division of assets following a divorce, and the cost of a divorce in Germany.
In Germany, a divorce can only be made in a courtroom decision. A divorce, as stated, occurs when a marriage has broken down, which involves demonstrating that the couple has been separated for a year. The couple can still reside in the same property during this separation year. In the event of domestic violence or abuse, or where one of the parties does not feel safe remaining married to the other spouse, an exception can be made to the year of separation requirement. Contact our lawyers to find out more!
Personal Appearance at Court during a Divorce
Generally, it is required that both partners do turn up to at least one court session during divorce proceedings. Under § 128 FamFG, the court invites both parties to attend the proceedings and provide their account for the marriage breakdown. Both parties must present their views on the situation as to whether there is any chance of reconciliation. The parties need to be represented by their lawyers, and without the lawyers present, the court session cannot continue.
Should a party not attend the proceedings without an excuse, they could be issued an administrative fine under § 33 FamFG. This administrative fine can be up to €1000. However, the court will issue a new date following this non-attendance and once again can give an administrative fine for non-attendance. In cases of repeated non-attendance, the court can issue an order for the bailiff to bring the party to the proceedings under § 380 ZPO.
Therefore, should you not wish to attend the divorce proceedings, this can have major consequences. However, there are some exceptions to this rule.
What Happens if I do not feel Comfortable Attending Court?
Should a person not wish to be in the same courtroom as the person they are divorcing, there are means by which the two parties do not need to provide their accounts at the same time. § 128(1) FamFG states the following:
The court shall order the personal appearance of the spouses and shall hear them. The hearing of a spouse shall occur in the absence of the other spouse when this is necessary to protect the spouse being heard or for other reasons…
As can be seen, arrangements can be made during the divorce proceedings. It should be noted as well that divorce proceedings are not open to the public. Cases in other legal areas can allow public members to view the court case in session, but this does not apply in family law cases. In such cases, the judge, the lawyers, the parties involved and maybe an interpreter (if required) can attend.
Do not simply avoid the in-court proceedings – this will not accomplish anything! You are expected to make a personal appearance in court during the divorce for the court to examine your side of the proceedings. Please consult with our divorce lawyers before making any such decision. They will outline what options are open to you.
Amicable Divorce in Germany: Personal Appearance in Court
Even in cases of an amicable divorce, the parties must have a presence in the court. When well-prepared in advance and where the parties are not in dispute, an amicable divorce does not require much time in the court itself. Such an amicable divorce can amount to 10-15 minutes of court time. However, issues around pension rights equalisation, evidence of the couple’s one-year separation, issues around child custody, matters relating to spousal maintenance (should it apply) and much more will have to have been resolved between the spouses and their legal teams in advance. Not having such issues resolved in advance leads to lengthier proceedings and expensive legal suits.
Even the most amicable divorce proceedings require a lawyer to be present to ensure that it proceeds correctly. Ideally, both parties should have their own lawyers representing them to ensure that the divorce settlement is satisfied. This applies regardless of whether there are disputes or not in the division of assets and property or not. It is also the case that a personal appearance in court is required during the divorce proceedings.
Exception: Long-Distance from the Court
As stated in the introduction, marriages in Germany are becoming more and more international. This is to do with Germany becoming one of the most popular places globally for inward migration resulting in an increasing number of marriages with parties from different parts of the world. This trend does, however, cause certain difficulties in divorce cases and can mean that it may not be possible for parties to get to Germany for the divorce. Under § 128(3) FamFG, it states that in such cases:
If a spouse is unable to appear or if he lives such a distance from the seat of the court that it is unreasonable to require him to appear, the hearing or examination may take place before a requested judge.
If both spouses live abroad but want to proceed with a divorce under German law (as German citizens based elsewhere), this is possible in certain jurisdictions. A local court can hear the divorce proceedings and consult with a German court to ensure it is carried out correctly.
Although distance may mean that the person in question does not need to make a personal appearance in the court, another judge must still be heard. This will be determined if it is “not reasonable” for that spouse to be in court in person.
This deeming of unreasonableness to make a personal appearance at divorce proceedings also extends to cases where one of the spouses has a serious illness or is imprisoned, which may prevent them from travelling.
Postponement of Divorce Proceedings
There are other occasions when a person cannot make the divorce proceedings for other reasons. A less serious illness or another unexpected disruption may lead to them seeking to reschedule the proceedings. This can be allowed for in individual cases, but once again, it must be granted with the court’s permission. As above, failure to turn up to court proceedings can lead to heavy administrative fines. Consult with a legal professional before pursuing such an option.
What if one Party cannot find the Other Spouse?
Although not a common situation, it is possible that a spouse may seek to divorce an estranged partner who they cannot find the location. In this event, the person seeking the divorce should show that they have done everything possible to seek out the other spouse. This may mean having evidence demonstrating contact with the spouse’s friends, contacting the spouse’s last known residence and their family. Should there still be no response and no indication of where the spouse could be, it is fair to proceed with the divorce proceedings. However, as this situation is quite unusual, it is, of course, advisable to contact an experienced legal professional to ensure that you carry out your legal requirements.
Legal Representation in Divorce Cases in Germany
At Schlun & Elseven, we provide expert guidance and legal representation in divorce cases in Germany. Family law cases are difficult and present many challenges beyond mere legal questions; as experienced family lawyers, our team will handle your case with care and understanding. Although every individual situation is unique, having experienced counsel in your corner is the foundation needed for a successful solution.
At Schlun & Elseven, we are a full-service law firm with offices in Cologne, Düsseldorf and Aachen, and further conference facilities in Berlin, Hamburg, Munich, Stuttgart, and Frankfurt. We advise clients from all over the world in their dealings with German law. If you would like further legal advice on divorce law in Germany or other legal issues, please contact our lawyers directly. Once we have opened communication lines, we can start providing the specialised advice required. Click on the “contact us” button below this article or use our phone number or email address to get in touch with us. Our family lawyers look forward to working with you.