Germany Divorce & Family Law

Since 1977, Germany has operated a system of ‘no-fault’ divorce. This means that when a court is satisfied that your marriage has irretrievably broken down, it will grant your divorce. Courts in Germany do have limited powers over agreeing a financial settlement on divorce, and the rules regarding child custody are also specific to the country. Keep reading for everything you need to know about divorce in Germany.

Divorce laws in Germany

In Germany, fault does not play any part in divorce proceedings. The only ground for divorce in Germany is that your marriage has deteriorated to such as extent that you don’t expect to restore your relationship.

There are three main types of divorce:

• Agreement with one-year separation
• No agreement and three-year separation
• Hardship.

Agreement with one-year separation

If you have been separated for at least one year and you agree to the divorce, you can apply for a divorce.

Separated means:

• Different living arrangements
• No common meals
• No services provided to the other spouse.

If you meet these conditions then you can be considered separated, even if you live in the same property.

No agreement and three-year separation

If you don’t agree to a divorce, you have to be separated for at least three years. The German court will presume that your marriage has irretrievably broken down after three years, even if you oppose the divorce.

Hardship

Under certain circumstances it is possible to get a divorce if you have not been separated for a year. These ‘hardship’ cases apply in cases of domestic abuse, violence or other unreasonable behaviour (such as criminal activity).

The divorce process in Germany

Your application for divorce will normally be made at your local family court. Joint petitions cannot be made, and both of you will generally need to be represented by a lawyer.

The exception to this is if you agree on the divorce, in which case only the spouse requesting the divorce needs to be represented.

Child custody laws following divorce in Germany

As married parents, you both enjoy the same rights regarding your children and you both have shared custody.

When you divorce, the court will not consider child custody unless one of you requests that such a decision is made. If you don’t request a court decision, you will continue to have shared custody after your divorce.

If you can’t agree on residency or contact, a court will make a decision. A court will only end the shared custody of both parents if it is in your child’s best interests.

So, if you can cooperate with the other parent you can petition that shared custody continues. This is because the court will wish to maintain this arrangement where possible.

Factors the court will take into account when making an award include:

• How far apart you live
• Your respective work schedules
• The interests of your child
• Who has been caring for your child in the past
• Which parent will be more cooperative towards the other
• Your child’s wishes and feelings (depending on their age).

The court may ask the Jugendamt to provide a report. The Jugendamt is a government agency whose role is to speak to parents and children in custody disputes and provide recommendations for their welfare.

Contact arrangements will normally change as your child gets older. For example, courts often offer frequent contact without an overnight stay for young children. As your child gets older, this may change to overnight stays and extended contact in school holidays.

Germany is a signatory to the Hague Convention on Child Abduction and applies the Brussels IIa regulations. This means that if your child is taken out of Germany without your consent, you can take legal action to ensure their safe and swift return. Similarly, if your child is taken to Germany you can apply for their return.

Financial settlements following divorce in Germany

Courts in Germany are restricted in what aspects of a financial settlement they can rule on following divorce. They will only:

• Equalise your pension rights, assuming you have been married for more than three years. The pension rights adjustment ensures that the rights to future pension benefits accrued by each of you while you were married are balanced out against each other.

For example, any gaps in pension contributions you have because you weren’t working (perhaps because you were looking after your child) will be closed by this adjustment.

• Divide any gains you made during your marriage equally between you. The court will carry out an equalisation of gains made by both of you during your marriage.

The family courts must equalise pension entitlements, even if you don’t apply for this. However, they will only deal with other aspects if you ask them to. They have no power to make awards relating to the transfer of property (such as your marital home) and can only award child support for a limited time and where you will experience financial hardship following your marriage breakdown.

If you both worked and bought assets together (such as a home) then the equalisation of your gains during marriage will often not be a suitable outcome. In this case, the division of your assets will take place in a special action in a civil court, not as part of your divorce proceedings.