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.