Spousal Maintenance in Germany

When it comes to the dissolution of a marriage, the German Civil Code (BGB) stipulates in § 1565 that a separation of at least one year is required to enforce a divorce. This requirement does not apply if cohabitation would cause “unreasonable hardship” for the petitioner (§ 1565 (2) BGB). It is also possible to have a marriage declared null and void according to § 1313 BGB. However, this is only permissible in cases of e.g. coercion, mental stress or legal incapacity.

The most common forms of divorce therefore require a separation of at least one year and the initiation of proceedings in court. If a separation continues for more than three years and the spouses live apart during this time, the court considers this marriage to have irretrievably broken down.

It should be noted that German laws regarding spousal maintenance refer specifically to marriages and divorces of the latter. Insofar as a non-married couple separates, these provisions do not apply.

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 the 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 deciding the amount of maintenance to be paid, it is determined on a case-by-case basis based on the facts and issues. The maintenance amount will be measured based on the financial assets of the respective parties and their ability to earn more money and work. The claiming (receiving) party’s responsible for bringing the issue forward, as the payments may not commence automatically without them doing so.

The amount itself is usually calculated by finding the difference between the parties’ earnings while bearing in mind the other financial responsibilities of the parties, such as child support. Once the income disparity has been established, the court will generally award 3/7 of the difference as spousal maintenance.

Spousal maintenance is usually instituted as a temporary means of transitioning from marital to post-marital life. Usually, spousal maintenance is not intended to be a lifelong or long-term payment. If the partner liable for maintenance can no longer pay maintenance because they have lost their job or their income has fallen, it is advisable to seek advice from an experienced family law solicitor.

The partner liable for maintenance is not obliged to pay if this means financial hardship for them. There is also the possibility of a reduction in spousal maintenance. However, the party must inform the court of these facts. Otherwise, they may get into legal trouble.

The receiving party can also make a waiver regarding the payments if they no longer wish to rely on them. It should also be noted that the amount of maintenance does not automatically change just because the income of the party liable for maintenance has increased over time. The amount of maintenance is always based on the circumstances during the marriage.

As already mentioned, spousal maintenance is a temporary transitional payment. As a rule, it is terminated after the separation period. If maintenance continues to be paid after the divorce, the competent court usually sets a time frame. The aim is for the former spouses to be able to build an independent life outside their marriage, which is why maintenance should not continue indefinitely after the dissolution of the marriage.