Before the Divorce
Before an application for divorce is filed, the necessary arrangements should be taken. This is particularly the case when the relationship has been tense for a while. Especially when you fear that assets may be removed by your spouse, action should be taken. In this context, it is advisable to obtain an overview of your family’s and your spouse’s assets. We recommend securing relevant receipts, records and documents. After the separation, you will have a right to information, for instance when asserting a claim for maintenance. Yet, experience shows that the willingness to provide insight into one’s financial situation is often lacking, leading thereto that a right to information must often be enforced with help of a divorce lawyer.
Documentation is Key
For this reason, you should compile copies of your payroll of the last 12 months, the three most recent tax assessments, any relevant accounts, life insurance, building loan contracts, loan liabilities, notarial contracts, and of any other relevant documents. Furthermore, if you are renting a property, we recommend securing the rental contract and proof of the security deposit. Lastly, if you have granted your spouse power of attorney for your bank account, you should revoke this as soon as possible by contacting the respective bank.
Having followed the aforementioned steps, you should unambiguously communicate to your spouse that you consider the marriage as failed. It is advisable to also document this in written form, for instance through a lawyer. Only in this way, can it be prevented that your spouse will deny that one year of separation has elapsed at the moment you file for divorce, which constitutes a precondition of a successful application.
Enforcement of Divorce in German Law
The termination of a marriage is finalised through a divorce decree. The German Civil Code (BGB) governs divorce in the provisions §§ 1564 BGB. A marriage is considered as failed when the marital cohabitation is not existent anymore.
For this to be the case, the former spouses must dissolve the conjugal partnership in any regard. Commonly, one of the spouses moves out. However, if this is not possible, for instance because of the couple’s children, a spatial separation must be installed in the shared home. It is decisive that one household turns into two (see BGH, judgement f. 14.6.1978 – IV ZR 164/77 (Düsseldorf)). This implies, for example, that no household supply tasks may be conducted for the other spouse, such as grocery shopping, laundry or cooking. Furthermore, arrangements must be taken in view of regulating the use of shared rooms, such as the kitchen or the bathroom. Preferably, this should be documented in writing. A divorce lawyer can assist you with this.
Exact conditions for a divorce: failed marriage
It is crucial that generally, German law only provides for the possibility of divorce if the marriage has failed (§1565 para.1 BGB). This is the case if there is no conjugal partnership anymore and it cannot be expected that this partnership can be restored (§1565 para.2 BGB). First and foremost, this applies if the couple does not live together anymore (§1567 para.1 BGB). This way, a failed marriage can be proven, especially if one spouse wishes to divorce while the other wishes to hold on to the marriage. Please note that in case of a dispute, a marriage is only incontrovertibly considered failed if the (former) spouses have lived separately for three years (§1566 para.1 BGB).
However, this consideration can be disproved in particular cases. Then even if the other spouse is contesting, it can be possible to achieve a divorce earlier than three years. This requires detailed presentation in front of the court by an experienced divorce lawyer.
Yet, moving out must be well thought through as this act can trigger several consequences. Particularly where children are involved, moving out without them can later have an impact on the right to determine the residence of the children or even on the right of custody. Therefore, this step should be carefully considered. More detailed information concerning this can be found in the section ‘Right of custody and right to determine the right of residence’.
In addition, the question of which spouse may continue to use the formerly shared home arises. If one spouse leaves and does not show a serious intention to return, it will irrevocably be assumed that (s)he surrenders her or his right of use to the other spouse. Thus, before leaving the shared home, legal advice from a divorce lawyer should be sought.
Consequences of a Divorce in Germany
After a divorce, it is generally possible to claim spousal alimony and child allowance from the former spouse. In practice, the determination of the precise costs often leads to problems, which have to be solved by divorce lawyers. Our English speaking experts will gladly assist you by explaining the pension rights adjustment, which is carried out by the German Family Court.
If children are involved, questions concerning custody and the right to determine the place of residence for them, become relevant. Particularly issues that are decisive for the children’s future should be considered diligently. The best interests of the children should always be decisive, which is why parents should attempt to mutually agree on a solution. Legal advice from experienced Divorce Lawyers can pave the way for the parents to achieve the best outcome for their children.
As a result of the divorce, the assets of the former spouses will be divided again. The division of these assets depends on whether the former spouses lived in a community of accrued gains (Zugewinngemeinschaft, §1363 BGB, which is generally the case if the spouses did not decide otherwise), in a regime of separated property (Gütertrennung §1414 BGB) or in a community of property (Gütergemeinschaft §1415 BGB, if decided on in a marriage contract). The division of assets in a specific case depends on the respective regime since these are regulated in different ways. To ensure that you receive what you are owed, it is advisable to consult a Divorce Lawyer in Germany.
The divorce lawyers in our offices in Aachen, Cologne and Düsseldorf will be pleased to assist you in handling the relevant proceedings in this overwhelming period of time. Our conference rooms in Berlin, Hamburg, Stuttgart, Frankfurt and Munich serve as additional contact points.