Considerable changes of a legal nature usually accompany marriage – be it regarding joint assets or future inheritance and maintenance claims. It is therefore advisable to seek advice in advance about the tax and inheritance law consequences under German law of such a step and to find out about the possibility of concluding a prenuptial agreement.

Prenuptial agreements offer several advantages for married couples. As they regulate the rights and obligations of the spouses in a binding manner, they guarantee security and clarity regarding the division of property and assets in the event of divorce, death, or inheritance. In addition, a prenuptial agreement can significantly reduce the costs associated with a divorce. As it is desirable to conclude a prenuptial agreement that is as fair as possible, especially at the beginning of the marriage, couples in Germany should inform themselves as early as possible about the advantages and scope of structuring a prenuptial agreement so that they can conclude one if necessary.

Such prenuptial agreements are particularly recommended for wealthy individuals, entrepreneurs and the self-employed. A carefully drafted prenuptial agreement is essential to protect business assets and ensure business continuity in the event of a divorce. Despite its legally binding nature, challenging a prenuptial agreement, changing German prenuptial agreements retrospectively or even cancelling them is still possible. Our German family lawyers will explain your options regarding an existing prenuptial agreement and will support you in the design and drafting of your prenuptial agreement.

German divorce law is regulated in Sections 1564 ff. of the German Civil Code (BGB). The BGB stipulates the breakdown of a marriage as an indispensable prerequisite for divorce, Section 1565 BGB. According to Section 1565 para. 1 BGB, such a breakdown exists if there is no longer a marital partnership, and it is not to be expected that the marriage will be restored. The year of separation must be completed to establish with absolute certainty that the marriage has finally broken down. Only then can the divorce become final. This applies at least in cases where the spouses agree on the divorce. However, if only one partner files for divorce, the marriage is only deemed to have failed indisputably after three years of separation (see Section 1566 (2) BGB).

According to Section 1565 para. 2 BGB, the requirement for a year of separation can be waived in certain cases of particular hardship. Such cases include, for example, domestic violence and abusive relationships. However, it is up to the competent court to decide on a case-by-case basis whether such a case ultimately exists. The lawyers at Schlun & Elseven Rechtsanwälte will be happy to examine your case’s chances of success and represent you with the necessary assertiveness and tactfulness.

Under certain circumstances, it is possible to divorce under German law if one of the spouses lives abroad. If the spouse living abroad files for divorce in Germany, the proceedings can be conducted under German law if the spouses have a connection to Germany. This connection can take the form of German citizenship or a German residence. In addition, the couple should have lived together in Germany before the separation or divorce. This enables divorce under German law even in cases where one of the partners does not have German citizenship.

A divorce under German law is also possible if neither of the spouses currently lives in Germany but got married in Germany and one (or both) has German citizenship. It is also possible to return to Germany for the divorce proceedings. If a return is not an option, in some jurisdictions, a local court may hear the divorce matter and consult the competent German court to ensure that the matter has been handled correctly.

If one spouse applies for divorce but does not know where the other spouse is, they must prove to the court that they have done everything possible to find them. The requirements for this are broadly defined. For example, searching for the partner requires contacting the spouse’s friends or family and visiting the spouse’s last known residence and/or workplace.

If one of the spouses is not a German citizen, it makes no difference how the divorce proceedings are conducted if both parties agree to settle the matter following German law. It is also possible to apply the law of another country to the case. For example, EU citizens who are resident in Germany can agree with their spouse that the divorce law of the country is to be applied, in which:

• you and your spouse live,
• you last lived – if one of you still lives there,
• one of you has the nationality or
• you are filing for divorce.

However, this choice of law should be well thought out. The lawyers at Schlun & Elseven Rechtsanwälte recommend that you inform yourself about the various legal systems and the advantages and disadvantages of each before choosing the law applicable to your divorce. In addition, couples who divorce under German law should ensure that the divorce is also recognised in their home country. Our international family and divorce law experts will be happy to advise you on your choice of law. Please contact us to find out more about our divorce law services.

If one of the partners is a non-EU citizen living in Germany, their residence permit may relate to their marriage and, therefore, can leave the spouse concerned vulnerable in the event of a divorce. However, it should be noted that, as a rule, an additional year of residence is granted if the spouse has already lived in Germany for three years (see Section 31 para. 1 no. 1 of the German Residence Act, AufenthG). You should, therefore, apply for a new German residence permit immediately after separating or divorcing your German spouse.

However, the right to a one-year extension of the spouse’s residence permit after the breakdown of the marriage is standardised in Section 31 (1) AufenthG but may not exist in cases where the spouse has been in Germany for less than three years. However, an exception to the above could apply if there is a case of hardship. This applies in cases involving children or domestic violence. An experienced family lawyer should be consulted here.

The courts in Germany place the welfare of the child above all other considerations relating to custody and access rights. As a rule, both parents receive joint custody. After a separation, issues relating to the custody, access, and residence rights of the joint child often lead to disputes. Therefore, the question often arises as to whether it is possible to enforce the withdrawal of custody. The application for sole custody and the withdrawal or restriction of access rights at the competent family court is relevant in cases of domestic violence, for example.

Furthermore, a custody case can become more legally complex if it is international. This is the case, for example, if the parents live in different countries or if one parent wants the child to move to another country. In cases where both parents have custody and, therefore, the right to determine the child’s place of residence, the desired move and a trip abroad must be agreed upon with the other partner in advance. Otherwise, one parent could be accused of international child abduction.

Even during the separation period, German law generally provides for mutual support in the form of maintenance payments. The higher-earning partner generally provides financial support to help their former spouse find a job or start an education. However, the need to pay maintenance for the joint children is of greater importance. Enforcing maintenance payments when moving abroad can be difficult, which is why advice from an experienced German family lawyer should be considered.