Divorce in Germany is not only an emotionally stressful experience for most of those concerned but also a considerable legal challenge. If a couple decides to separate, several legal questions have to be answered – on the one hand, concerning child custody, access and spousal maintenance and alimony rights, and on the other hand, regarding the division of joint assets. Particularly important: How does the divorce affect taxes, inheritance law and the joint tenancy agreement?
The German law firm Schlun & Elseven Rechtsanwälte offers skilled and committed legal assistance to provide our clients with the clarity they need. Our lawyers for family law have in-depth expertise in German and international divorce law and the necessary empathy to make this emotionally demanding situation as pleasant as possible for you and your family. No matter what family law issue in Germany needs to be resolved, we are always there for you – from the first consultation until the divorce becomes final.
Our family lawyers have vast experience in supporting foreigners in Germany who are dealing with divorce. At Schlun & Elseven Rechtsanwälte, we understand the complexities and challenges that arise in international divorce cases, particularly for expatriates or individuals from different cultural backgrounds. With our comprehensive knowledge of German divorce law and dedication to providing personalised guidance, we strive to support our clients through every step of the process with sensitivity and efficiency.
Please do not hesitate to contact us directly for specialised legal guidance and support.
Divorce Proceedings in Germany
Divorce Preparation: The Crucial Role of Documentation
Before filing for divorce, the parties should make the necessary arrangements. This requirement is particularly the case if the relationship has been strained for some time. In such cases, obtaining an overview of your family’s and your spouse’s assets is advisable. In particular, you should take action if you fear your spouse could withdraw your assets. We therefore recommend that you keep relevant receipts, records and documents.
To keep an overview and make an accurate list of your assets, you should compile copies of your pay slips for the last 12 months, the last three tax assessments, relevant accounts, life insurance policies, building society savings contracts, loan liabilities, notarised contracts and other relevant documents. We also recommend securing the tenancy agreement and proof of the deposit if you rent a property. If you have given your spouse a power of attorney for your bank account, you should revoke this as soon as possible by contacting the relevant bank.
After taking the above steps, inform your spouse in no uncertain terms that you consider the marriage to have broken down. Documenting this in writing (e.g., through a lawyer) is advisable. Such a step is the only way to prevent your spouse from denying that the required year of separation has elapsed when filing for divorce.
After the separation, you have a right to information if you wish to assert maintenance claims. However, experience has shown that people are often unwilling to provide insight into their own financial circumstances. In such cases, in particular, we recommend that you seek legal advice. Please feel free to contact one of our family law solicitors. Our lawyers will advise you and represent you in your divorce proceedings both in and out of court, asserting your rights and interests. Schlun & Elseven Rechtsanwälte is ready to support you in enforcing your right to information.
Conditions and Requirements for a Divorce in Germany
A divorce decree finalises the termination of a marriage in Germany. The German Civil Code (BGB) regulates this decision in §§ 1564 ff. BGB. The decisive factor is that German law generally only provides for the possibility of divorce if the marriage has broken down (§ 1565 Para. 1 BGB). This breakdown occurs if there is no longer a marital partnership, and it is not to be expected that this can be restored (§ 1565 Para. 2 BGB). This applies particularly if the couple no longer live together (§ 1567 Para. 1 BGB).
In the event of a dispute, on the other hand, a marriage is only deemed to have undisputedly broken down if the (former) spouses have lived separately for three years (§ 1566 Para. 2 BGB). However, this consideration can be refuted in some instances. Even if the other spouse disputes this, it is possible to divorce before the three years have expired. This requires a detailed presentation to the court by a lawyer experienced in divorce law.
However, moving out of the shared flat or house must be well thought out, as this act can have several consequences. Especially if children are involved, moving out without them can later impact rights of residence or even child custody. This step should, therefore, be carefully considered.
There is also the question of which spouse may continue to use the former shared flat or house. If one spouse moves out and shows no serious intention of returning, it is irrevocably assumed that they are ceding their right of use to the other spouse. Therefore, legal advice from a lawyer should be sought before moving out of the shared home.
Consequences of Divorce – Division of Assets | Post-Marital Maintenance
As a result of the divorce, the assets of the former spouses are redistributed. The division of these assets depends on whether the spouses lived in one of the following forms of matrimonial property regime:
- Community of accrued gains (§ 1363 BGB),
- Separation of property (§ 1414 BGB) or
- Community of property (§ 1415 BGB).
If the couple has not reached a contractual agreement on the division of assets in the event of a divorce, the spouses live under the community of accrued gains regime. In such cases, the gains realised during the marriage are equalised when the couple divorces. The division of assets during divorce often leads to disputes. It is therefore advisable to contact one of our family law solicitors for detailed advice.
The law already provides for mutual support between the spouses during the period of separation. Therefore, after a divorce, it is generally possible to demand spousal support and (in the case of joint children) child support from the former spouse. The amount to be paid depends on the individual case and is determined, among other things, based on the spouses’ financial situation.
As the maintenance obligation covers daily living expenses and pension provision, the court also carries out a pension equalisation – during or, if necessary, after the divorce proceedings (see § 140 FamFG). According to § 1 (1) VersAusglG, the shares of entitlements acquired during the marriage are to be divided between the spouses. The term “entitlements” refers to entitlements to pensions and claims to current pensions in Germany and abroad, including from statutory pension insurance, civil servants’ pensions, company pension schemes or private old-age and invalidity pension schemes (see § 2 (1) VersAusglG).
Custody and Access Rights | Right to Determine Residence
If children are involved, questions of child custody and access rights as well as the right to determine residence will be relevant for you. The welfare of the child should always be paramount. As a rule, both parents have joint custody even after separation. However, it is not uncommon for disputes to arise. It can happen that one parent wants to enforce the withdrawal of joint custody with the aim of obtaining sole custody. This is particularly relevant in cases of domestic violence. However, it is not only custody rights that can be restricted or excluded. This is also possible with regard to rights of access (see § 1684 of the German Civil Code) and the right to determine residence, which is a subsection of custody. Our legal experts in family law will be happy to assist you with questions regarding custody and access rights. We will represent your rights and interests both in and out of court.
Divorce Costs in Germany
Divorce costs in Germany are regulated by established guidelines, although they vary depending on several factors. These factors include the spouses’ monthly income, the number of children involved, and whether the divorce is disputed. Consulting an experienced family lawyer is recommended to understand the specific costs involved.
The divorce process in Germany involves examining whether the marriage has broken down, typically after a one-year separation period. However, this period can be waived in cases of domestic violence or abuse. Under German law, a lawyer is required to oversee divorce proceedings, but couples can choose to use one lawyer for an amicable divorce to reduce costs. Amicable divorces also involve less time in court and can be more cost-effective, especially if the couple has a prenuptial agreement in place.
Vital factors in calculating divorce costs include the net income of the partners, the number of children, the duration of the marriage, pension entitlements, and communal assets. Non-amicable divorces tend to be more expensive due to increased court time and the involvement of multiple lawyers. Disputed issues, particularly concerning assets, can contribute to higher costs in such cases.
International Divorce Law
Divorce cases and the associated aspects that need to be discussed (maintenance, custody and access rights, pension equalisation, etc.) are more complex when the case is international. Cross-border cases are increasingly becoming part of a lawyer’s everyday work due to the steady advance of globalisation. This gives rise to the following questions, among others:
- Which law applies in cross-border legal cases?
- At which court do I have to file for divorce if my spouse is domiciled in another country?
- Do I still have a right of residence in Germany after the divorce if this was previously granted to me on the basis of my marriage?
- My spouse does not live in Germany and would like to take our child to live with him/her after the divorce. What rights do I have? How do custody, contact and residence determination rights work in international cases?
The lawyers at Schlun & Elseven will be happy to advise you on the answers to these and other questions. Our family law practice group supports you in all national and international family law matters. Don’t hesitate to contact us today to learn more about our divorce law services. We stand up for you!
Prenuptial Agreements in Germany
Divorce law in Germany is a complex area of law that does not only become important after the separation of a couple, but can already be relevant at the time of marriage. The lawyers at Schlun & Elseven will therefore be happy to explain to you exactly which legal issues should be discussed before the marriage, how you can protect yourself in advance in the event of a divorce and which things need to be considered in the case of an international marriage. We will also be happy to work with you to draw up your prenuptial agreement or advise you in the event of a challenge, amendment or cancellation of the contract agreed at the time of marriage.
Regardless of the point at which you seek our legal advice, we will endeavour to find an amicable, sustainable solution to any disputes – for the benefit of both you and your child. Regardless of whether it concerns the division of joint private and business assets, the enforcement of family law claims (e.g. maintenance), the clarification of custody and access law issues or the implementation of pension equalisation – Schlun & Elseven is your contact for all family law matters. Do not hesitate to contact us today to find out more about our services.
Practice Group: German Family Law
Practice Group:
German Family Law
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