Spousal Maintenance Law in Germany

Following a separation it is likely that one of the partners may be entitled to a form of alimony payment in the form of separation spousal maintenance (Trennungsunterhalt). This payment will generally continue during the separation phase until the final divorce. It is also possible that in divorce one partner will be obliged to provide financial support to the other partner (Nachehelicher Ehegattenunterhalt) however, this only applies in certain conditions. It is not a requirement that the separation alimony payments continue indefinitely in the event of divorce.

In this article, Schlun & Elseven will outline the basic rules as regards spousal maintenance payments and the law regarding it in Germany. We will look at who is required to pay the spousal maintenance in the case of separation, how separations differ from divorce, how long the payments should continue for and the exceptions to the rules as regards spousal maintenance. However, for more personalised advice make sure to contact us using our contact details below.

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Separation & Divorce Proceedings in German Law

When it comes to dissolving a marriage it is §1565 the German Civil Code (das Bürgerliches Gesetzbuch – BGB) which outlines that a minimum of a year of separation is generally required in order to see a divorce go through. This minimum requirement is not necessary in cases where living together would cause “unreasonable hardship” on the petitioner (§1565(2)). It is also possible to have a marriage annulled under §1313 of the BGB but this is only allowed for in specific cases such as duress, “mental disturbance” and incapacity to contract. Therefore, the most common forms of divorce involve at least one year of separation and the proceedings being brought before the court. In the event that the separation has lasted three years, with the spouses living apart during that time, the court will presume that the marriage has irretrievably broken down.

It is worth noting now that German laws relating to spousal maintenance refer specifically to marriages and the breakdown of marriages. If the separation case in question involves a separation of a couple who were not married different rules apply. The general rules provided here do not apply in those cases. If you find yourself in such a situation make sure to contact us directly in order for our legal team to answer any questions you have concerning your personal situation.


Spousal Maintenance During Separation

During the separation of the former partners German law recognises that they support each other during this time. This form of maintenance is generally only in place for a short time and is rarely provided for that it should last long term. This system of spousal maintenance is in place as it recognises the financial disparity that may exist within marriages and aims to ensure that the commencement of a separation does not result in financial hardship for the parties. It is worth noting that issues concerning child support take precedence over spousal maintenance and this support must be satisfied before other maintenance payments are considered.

When it comes to deciding the amount of maintenance to be paid it is decided on a case-by-case basis based on the facts of the issues. The maintenance amount will be measured based on the financial assets of the respective parties as well as their ability to earn more money and to work. It is the responsibility of the claiming (receiving) party to bring the issue forward as the payments may not commence automatically without them doing so. For the amount itself it is normally calculated by finding the difference between the earnings of the parties while bearing in mind the other financial responsibilities of the parties such as child support. Once the difference of income has been established the court will generally award 3/7 of the difference as the spousal maintenance.


Spousal Maintenance During Divorce

Whereas spousal maintenance has general applicability in the event of separations this is not the case when it comes to the event of a divorce. German law went through a relatively recent reform in this area to ensure that only in difficult cases does the requirement for continuous maintenance apply. The courts will also decide on the length of time by which that maintenance support will continue for. The law regarding spousal maintenance in divorce is legislated for in German law by §1570-1580 of the BGB. Such cases occur in circumstances based around whether the potential receiving party has had to contend with any of the following:

  • Inability to find adequate employment post-divorce,
  • Needs maintenance to assist with further training
  • They have being the primary carers of the children from the marriage,
  • Inability to work due to age,
  • Inability to work due to illness,

Such cases will have a number of deciding factors when it comes to the amount of maintenance and whether it applies. For example, the supporting partner needs to be able to support themselves and any children from the marriage prior to the requirement for them to support the former spouse. Should the supporting partner not be able to finance themselves in the event of needing to provide maintenance for the other partner the court does not generally allow for them to go into financial difficulty to do so. This is particularly the case when children are involved, as their child support needs to be provided for first and foremost.

Should the partner be able to pay for spousal maintenance factors such as the following will be taken into account:

  • The duration of the marriage,
  • Which partner was the primary carer of the children,
  • Whether the receiving party was disadvantaged in their own earning potential through the marriage,
  • How long it will take for the receiving partner to become financially independent.

These factors are guidelines that the court will take into account when deciding such cases. However, it is vital to avail of legal assistance to explore how these issues will be seen in relation to your personal situation.


Ending Spousal Maintenance

Spousal maintenance is generally put in place as a temporary means to allow for the transition from an environment of marital support to the post-marital life. In most cases, the spousal maintenance is not designed as a lifelong or long-term payment. If the supporting party is no longer able to pay the maintenance due to loss of work or drop in earnings it is worth bringing this issue to the notice of the courts. The supporting partner is not under the obligation to pay when doing so would cause them financial hardship. They can also petition the court to have the amount of spousal maintenance reduced in such events. However, it is necessary that the party inform the court of these realities or they may face legal difficulties.

The receiving party may issue a waiver as regards the payments if they may wish to no longer be reliant on the payments of their former spouse. Should the income of the supporting party change over time so that they earn more than during the marriage the receiving party cannot seek to change the amount of maintenance received based simply on this fact. The maintenance sum is based on their realities during the course of the marriage.

As stated above, spousal maintenance is normally a temporary transitional payment. Usually it will be concluded following the separation period. However, in the event of it continuing post-divorce the courts will usually provide a time-frame by which to allow for the payments. The aim is that the former spouses will be able to make independent lives for themselves out of their former marriage and thus the support is not intended to continue on indefinitely post-dissolution of the marriage.

Practice Group for Family Law

Kerstin Wolters

Kerstin Wolters
Specialist Family Lawyer

Abschira Kontny

Abschira Kontny
Family Lawyer

Contact our Practice Group for Family Law and Spousal Maintenance

German Lawyers in the Field of Spousal Maintenance

Our Family Law team is led by our leading family lawyer Kerstin Wolters. Our lawyers are widely knowledgeable in the area of family law. On this page we provided a basic outline of what is involved in spousal maintenance but if you require more information please contact us. Through contacting us directly, our lawyers can provide the counsel, assistance and guidance you need as regards how the law relates to your personal circumstances. With offices in Cologne, Düsseldorf and Aachen and conference rooms in Berlin, Frankfurt, Munich, Hamburg and Stuttgart our lawyers are available at your convenience.

Our firm also appreciates the value of communication and because of this we can offer our services in a range of languages such as English, French, Spanish, Russian, Turkish and Portuguese as well as German. Our lawyers provide comprehensive assistance when it comes to breaking down the law, communicating the issues in an understandable manner and in providing excellent support both inside and out of court. If you are looking for assistance in the field of spousal maintenance or in German family law in general, make sure to contact Schlun & Elseven using the contact details below this article.

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Use our form below to set out your questions on spousal maintenance as well as divorce and separation in Germany. After receipt of your enquiry, we will give you a brief preliminary estimate on the basis of the facts as explained by you, and will send you a quotation. You can then decide whether or not you want to instruct us in your case. This service is free and without any obligation to continue with our service.

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