International Divorce Cases: German Family Lawyer

Comprehensive legal support in times of crisis

International Divorce Cases:
German Family Lawyer

Comprehensive legal support in times of crisis

As our world gets smaller, cases involving international divorce increase. International divorces consist of those with partners from different countries, marriages which occurred in other jurisdictions, and proceedings in which a divorce was filed in Germany, but one of the spouses lives abroad. Our family law team regularly assists clients globally in divorce cases and those related to child custody, access and support, and can be relied upon in times of crisis.

Divorce in Germany: The Legal Grounds

§ 1564 -1568 BGB regulates the grounds for divorce in Germany, but primarily, it concerns the breakdown of the marriage. The primary indicator is that the spouses have separated for at least one year and live different lives. This “Trennungsjahr” applies for at least one year if both partners decide to get divorced, or three years apart if one of the partners is seeking a divorce. Under German law, divorce cases are recognised when there is a “breakdown of the marriage”. A breakdown is indicated when the couple no longer lives together and does not expect to restore the relationship.

However, § 1565 para. 2 BGB does permit the waiving of this requirement in certain circumstances of particular hardship. Such hardship cases include issues such as domestic violence and abusive relationships. In these matters, delaying the divorce by a year would be viewed as a hardship.

Although Germany’s divorce laws operate under a “no-fault” basis, the behaviour of the parties will be considered in matters such as child custody, child support and alimony payments.

Child Access, Custody & International Relocation: Legal Issues

The courts in Germany place “the best interests of the child” above all other considerations regarding child custody and access. Usually, both parents are granted joint custody of the child, although parents can voluntarily give up their rights to custody. If a parent believes that granting joint custody will damage the child’s interests, they can base their challenge for sole custody on this basis.

Child custody can be more complicated in situations involving international elements, whereby parents reside in different countries or where a parent is seeking to move the child to another country. In cases where both parents have custody, the desired move must be communicated clearly with the other partner.

In cases where a parent has sole custody of the child, they often do not need the other parent’s permission to make significant decisions for the child but still should proceed with caution.  Without constructive dialogue and the other parent’s permission, parents can leave themselves open to the accusation of international child abduction. At Schlun & Elseven Rechtsanwälte, our team can advise you on all of these matters.

German Divorce: Spouses Reside Outside Germany

It is possible, under certain conditions, to get divorced by German law in situations where one of the spouses is living abroad. If the spouse living abroad files the divorce in Germany, the case can be under German law if the spouses have a connection to Germany. This connection can be in the form of German citizenship or German residency. The couple should also have resided together in Germany before their separation/divorce. Even in cases where one of the partners is not a German citizen, the divorce can be under German law conditions if they had resided in Germany as a married couple.

Similarly, it is possible to have a divorce under German law even if neither spouse currently lives in Germany. If the couple were married in Germany, and one (or both) are German citizens but are now living abroad, then they can have their divorce settled by the terms of German divorce law. The spouses can even return to Germany for the divorce proceedings. However, if they prefer not to travel, in some jurisdictions, a local court can hear the divorce case and consult with a German court to ensure that the issue has been carried out correctly.

Should a spouse seek a divorce but not know the location of the other spouse, they need to demonstrate to the court that they have done everything reasonable to find them. It is a broad term involving actions such as contacting the spouse’s friends, their last known residence, the spouse’s workplace and family. At Schlun & Elseven Rechtsanwälte, our family law team provides legal support in all these matters.

    German Divorce Law Services for EU Citizens in Germany

    Should one of the spouses be a non-German citizen, there is no difference in how the divorce proceedings will occur should both sides agree to have the matter resolved under German law. It can also be possible to have the laws of another jurisdiction applied to the case. For example, for EU citizens based in Germany, you can agree with your spouse to use the divorce laws of the country where :

    • you and your spouse live,
    • you last lived together – if one of you still lives there,
    • either of you is a national or,
    • you are filing for divorce.

    If the couple gets divorced under German law, they may need to consult with a lawyer to ensure that it is recognised in their home country. However, if they are from another European Union country, the divorce in Germany will be automatically recognised in their home country.

      Residence Permits after Divorce

      If one of the partners is a non-EU citizen living in Germany, it is possible that their residence permit is based on their marriage. Such a situation can leave them vulnerable in the event of a divorce. It should also be noted that it should not prohibit that partner from proceeding with the divorce, particularly where they face an abusive marriage. Our lawyers provide clear advice regarding actions to take based on whether they want to remain in Germany following the divorce.

      Generally, if the spouse has lived in Germany for three years they are likely to be granted an extra year of residency. § 31 German Residency Act regulates this extra year of residency. During this time they should look for a way to remain in Germany longer. This may mean finding skilled work (if they were not in skilled work already) or finding vocational training.

      In cases which involve the spouse residing for less than three years in Germany this right for an extra year of residency may not exist. However, when there are cases with children involved or with domestic violence there are other factors also at play and legal advice should be sought.

      As a full-service law firm our family lawyers can consult with our immigration law specialists in complex situations. Our lawyers regularly contend with legal difficulties connected with German residence permits and visas, and are therefore perfectly suited to answering all questions on this matter.

      Prenuptial Agreements and the Division of Assets

      Prenuptial agreements carry many benefits for spouses and should always be considered by those who get married in Germany.

      Prenuptial agreements (or “marriage contracts”) provide certainty and clarity regarding the division of property and assets in the event of a divorce or death. They can also significantly reduce the fees involved in any potential divorce. The best time to draft a prenuptial agreement is at the beginning of a marriage. By doing so, partners can ensure that the agreement is carried out fairly and in the right spirit. At Schlun & Elseven Rechtsanwälte, our family law team is available to advise couples regarding prenuptial agreements in Germany. Allow us to apply our extensive knowledge and expertise for your benefit.

      Marriage contracts are of crucial importance to those with business assets, and particularly to entrepreneurs. Having a secure prenuptial agreement is essential in protecting business assets and ensuring continuity for the company in the event of the entrepreneur’s divorce. As a full-service law firm, our team consists of legal professionals who are aware of the challenges of running a successful enterprise.

      Spousal Maintenance, Alimony & Child Support

      During the separation year (or years) as required under German law, spousal maintenance payments are a requirement. Generally, financial support is paid by the higher-earning partner to help their former spouse to find work or gain an education, if this is needed following the divorce. However, the need to pay child support is more significant. Usually such support is paid by the person identified as the father of the baby. However, enforcing child support payments when moving abroad can be a challenging process and consulting with experienced family lawyers should be strongly considered.

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      Practice Group: German Family Law

      Practice Group:
      German Family Law

      Dr. Tim Schlun

      Lawyer | Managing Partner

      Maria Ivanova

      Certified Specialist Lawyer in Family Law