Marriage and divorce are important matters in social and legal life, and laws and procedures vary from one country to another. In the following, we will discuss the conditions and procedures of divorce in German law.
Conditions for divorce in German law
German law requires that one full year must pass since the actual separation of the spouses for a divorce to be granted. This is to allow the couple to reflect on themselves and attempt reconciliation. This separation must be actual and tangible, and can be proven by separating finances if the spouses receive social assistance. The couple can stay in the same marital home during this period, provided that they separate in terms of sleeping, eating, clothing, and other household matters.
It is important to prove the actual separation between the spouses, and this can be done by presenting a document of financial separation, in case one of the spouses receives social assistance.
If the spouses agree that one year has passed, they can now submit a divorce application to the family court. It is important for both parties to prove that they have lived separately for a full year and that there has been no attempt at reconciliation during this period. If the divorce is approved, the court will issue a decision determining the rights of the spouses after the divorce, including custody, financial support, and distribution of property.
It should be noted that when children are involved, the decision on custody depends on their best interest. Joint custody is usually granted to both parents, and the duration of residence for each parent is determined based on the individual circumstances of the family.
Necessary procedures for filing a divorce application in Germany
In Germany, divorce application procedures vary slightly depending on the nature of the divorce and its circumstances. To file a divorce application in Germany, the following procedures can be followed:
1- Collect the necessary documents:
Gather all the necessary documents for filing the divorce application, including the marriage certificate, children’s birth certificates (if any), and any other documents related to the marriage, such as the marriage contract or custody documents.
2- Determine the competent court:
Determine the court competent to consider the divorce application, which depends on the residence of the spouses. Necessary information about the competent court can be obtained from the local legal office or your attorney.
3- Submit the divorce application:
Submit the divorce application to the competent court, which can be done formally according to the specified legal procedures. The application should include details about the reasons for the application and the specific demands of the divorce, such as asset distribution, custody, financial support, and others.
4- Court hearing:
After submitting the application, a court hearing date is set, which must be attended and evidence supporting the divorce application must be presented. After reviewing the evidence and hearing both parties, the judge issues the final judicial decision on the divorce.
5- Implement the judgment:
After the judicial decision is issued, the judgment must be executed, and all related procedures must be carried out, such as asset distribution, custody determination, financial support, and others.
Determining custody, financial support, and asset distribution after divorce in German law
In Germany, the divorce process is regulated under family laws, which include civil and financial provisions for the family. Divorce laws in Germany vary slightly depending on the federal state in which the spouses live.
Among the main laws governing the divorce process in Germany:
German Family Law Bürgerliches Gesetzbuch (BGB): This is the main law regulating family relations in Germany, defining the rights, obligations, and procedures related to divorce, custody determination, asset distribution, property, and financial support.
The main provisions relating to divorce in German law
Section § 1564 of the German Family Law governing divorce stipulates that divorce can only be granted by court order when one spouse or both spouses apply for divorce. After examining the application and ruling on it, the marriage is dissolved permanently. The conditions under which a spouse may apply for divorce are defined in the following sections of the text. After the judgment, the matter is finally settled and the marriage is officially dissolved.
§ 1565 This section concerns the conditions for divorce in Germany. It states the following: Divorce can be granted if the marriage has failed and the marital relationship cannot be restored. If the spouses have not lived separately for one year, divorce can only be granted if one spouse applies for it and it can be established that continuing to live with the current partner constitutes an unbearable hardship for the applicant due to personal circumstances related to the other partner.
§ 1566 This section concerns divorce by mutual consent in the absence of dispute between the spouses. It states the following: If the spouses have lived separately for one year and both spouses apply for divorce or the defendant spouse consents to the divorce sought, the marriage is presumed to be broken down without intervention by either party. If the spouses have lived separately for 3 years, the marriage is presumed to be broken down without intervention by either party.
§ 1566 This section concerns the definition of separate living in German family law. It states the following: Spouses are considered to be living apart if they do not live in the same dwelling and there is no form of emotional or physical relationship between them, and if one spouse is determined not to restore marital cohabitation because he refuses to live with the other partner. Spouses are also considered separated if they live in the same dwelling but in separate parts of it and there is no form of marital relationship between them. The spouses’ temporary return to cohabitation for the purpose of reconciliation does not affect the time periods specified in § 1566.
§ 1567 This section concerns the “hardship clause” or “flexibility clause” in German family law, which allows for an exception to the divorce rule in exceptional circumstances. It states the following: Divorce does not necessarily have to be granted in the event of marital breakdown if maintaining the marriage is deemed necessary in the interests of minor children of the marriage for special reasons, or if divorce would cause the other spouse, who refuses divorce, severe hardship due to exceptional circumstances, in which case divorce may be refused on an exceptional and flexible basis. It should be noted that the “flexibility clause” is rarely applied and strong evidence and extra caution must be provided to prove that divorce should not be granted in this exceptional case.
§ 1568 This section concerns the conditions for assigning the marital home (Ehewohnung) in the event of divorce under German law. It states the following: One spouse may require the other to assign the marital home to them in the event of divorce if they have a much more urgent need to use it than the other spouse, and the interests of any minor children living in the home and the life circumstances of the spouses must be taken into account. The marital home may also be assigned for other reasons consistent with the principle of equity. The other spouse who has a property right, mortgage right or right of permanent residence may refuse to assign the marital home unless such assignment is necessary to avoid undue hardship. The same conditions apply to property rights of apartments and permanent rights of residence. In the event of assignment of the marital home to one spouse, that spouse replaces the other spouse in the lease concluded between the spouses and the lessor, whether the lease is current or renewed. The law also applies to the provisions relating to rental. One spouse may demand the conclusion of a lease for the marital home to which they are entitled and which they occupy based on an employment or service relationship, if the third party consents to this or if it is necessary to avoid severe hardship. If there is no lease for the marital home, each of the spouses entitled to assignment of the marital home and the person entitled to rent the home in question can insist on concluding a lease on reasonable terms in accordance with legal principles. If concluding a lease is not appropriate for the third party or is not compatible with the interests of the lessor, a fixed term of the lease or a reasonable rent can be demanded. The right to conclude a lease or to intervene in a lease expires one year after the date of the final judgment in the divorce case, if the action has not been brought before that date.
The conditions relating to the marital home and the different property rights vary from country to country, so it is strongly advisable to obtain legal advice from a lawyer specialized in German law to understand the specific conditions and procedures for assigning the marital home in the event of divorce.
In summary, all laws relating to divorce in Germany:
Three legal sections were mentioned in the previous text:
1- Section § 1569 on the principle of personal responsibility in the event of divorce under German law, which states that after divorce, each party assumes full responsibility for providing for themselves, including meeting their basic financial and material needs.
2- Section § 1570 on the right to claim maintenance for the care and upbringing of children in the event of divorce under German law, which states that after divorce, either ex-spouse may claim maintenance from the other for the care and upbringing of their joint child for at least three years after its birth.
3- Section § 1579 on the right to claim maintenance due to age in the event of divorce under German law, which states that after divorce, either ex-spouse may claim maintenance from the other if they are unable to work due to their age at the time of divorce or after ceasing to care for the joint children, and no employment can be expected at that time due to age.
These sections aim to provide financial protection for persons affected by divorce, whether due to age or child care and upbringing.