German Family Law
Waldemar Haak - Fachanwalt für Familienrecht - Köln
Please feel free to contact us for further information on your individual case.
GERMAN FAMILY LAW
I. Which law applies?
German law always applies to the divorce procedure itself and also to support / alimony law (Unterhaltsrecht).
This may be different for the sharing of marital gains (Güterrecht). For marriages before 29. January 2019 usually the joint citizenship of the spouses is decisive for the applicable law on marital gains.
II. What are the consequences?
Divorces in Germany are always handled by family courts. Divorces of foreigners in an embassy (on German soil) are not recognized by German authorities. This may play a role if the foreigners stay in Germany after an "embassy divorce". They are still considered as spouses by the German authorities.
A year of separation is required before the marriage can be divorced.
You may apply for the divorce before the separation year is over, but first consult your lawyer about that, as there can be financial risks involved.
The court does not automatically rule on any of the typical claims in the context of a separation. If you want a regulation on spouse support or on the sharing of marital assets, your lawyer has to specifically apply for that. Separate court procedures on these matters (after the divorce) only make sense, if a fast divorce appears to be necessary.
You also may apply for an equalization of pensions (Versorgungsausglich) that have been acquired in Germany.
III. Details on typical claims
1. Alimony / support
Basically, there is child and spouse support.
Child support (Kindesunterhalt) is usually quite simple to handle, as the amounts to be paid are set by the "Düsseldorfer Tabelle". If you are taking care of minors, you may also contact the local youth agency (Jugendamt), which will help you to enforce the child support claim against the other parent.
The laws on spouse support (Ehegattenunterhalt) on the other hand is quite complicated and spouse support (alimony) claims should not be calculated or agreed upon without legal representation.
Basis for the calculation of spouse support is the marital income (eheliche Lebensverhältnisse).
The basic calculation runs like this: (A - B) / 7 x 3.
A and B being the incomes of the spouses.
Monthly net income
wife 3.000,00 €
husband 2.000,00 €
Calculation: 1.000,00 / 7 x 3 = 428,00 €.
In this (simplified) example the husband could claim a monthly support of 428,00 € in case of separation.
There is no time limit to that as long as the marriage is not divorced. After the divorce usually a time limit applies. The law does not say for how long the alimony has to be paid. As a rule of thumb spouse support has to be paid for about 1/3 of the duration of the marriage. Sometimes it´s much shorter, if the separation phase was very long and support has been paid during the separation phase. Basically, support is paid during the "orientation phase", which is the amount of time the spouse in need of support needs to find work, maybe gain an education and generally get used to get by on his own income.
Quite often one of the spouses is not working full time with the consequence, that his income is rather low. The law expects him to take care of himself some time after separation. He has to take on a full time job after one year of separation at the latest. If he doesn´t, his support claim is calculated with a fictitious income. Should a full time job not be possible because of child care, a fictitious income from a part time job may apply. Only if the spouse takes care of small children up to the age of three or has reached retirement age there is no obligation to look for work.
2. Equalization of marital gains (Güterrecht, Zugewinnausgleich).
In case of a marriage before the 29.1.2019 the law of the joint citizenship applies.
Spouses from Great Britain that have their marriages divorced in Germany could claim an equalization of marital gains / assets according to the UK law. At least that´s the basic principle. Since UK courts usually apply UK family law to all divorce proceedings in the UK without taking the citizenship of the spouses into account, German courts may apply German law on British subjects.
Spouses living in Germany, but not being German citizens can usually choose the German law to apply to all aspects of their marriage including the equalization of marital gains. This often makes a lot of sense, as the German law on the equalization of marital gains is quite simple and easy to enforce, compared to other countries.
In case the German law on the equalization of marital gains applies, the basic principles are these:
- There are no jointly owned marital assets with the exception of joint bank accounts, houses (only if both spouses are registered as owners) or household items (including a family car). Whatever assets one of the spouses has acquired during the marriage, are only his assets, they are not jointly owned assets.
- This makes the equalization of marital gains quite simple, as the resulting claim always runs to the payment of a certain amount of money.
A basic example:
Both husband and wife have separate bank accounts, from the time before the marriage. They´ve married on 1.1.2010. The marriage procedure started on 1.1.2020. Both spouses have no assets other than what is in their bank accounts.
The balance of the accounts looks like this:
1.1.2010 5.000,00 €
1.1.2020 100.00,00 €
1.1.2010 5.000,00 €
1.1.2020 50.000,00 €
The husband has gained 95.000,00 € during the marriage and the wife 45.000,00 €. The difference is 50.000,00 €. The husband would have to pay her 25.000,00 €. Both would end up with 70.000,00 € after the equalization of the gains which have been acquired during the marriage.
3. Equalization of pensions (Versorgungsausgleich)
Claims for old age provision (private or state pension systems) are equalized. This is done automatically by the court if one of the spouses is a German. In other cases you have to apply for that.
The typical case here is that both spouses have worked in Germany and now have claims against the German state pension system (Deutsche Rentenversicherung). They also may have additional claims from a private pension insurance (private Rentenversicherung) or against their employer (Betriebsrente). The family court will get information on the amount of all these claims and make a binding ruling on how these claims are shared. One of the spouses may lose some retirement benefits, while the other gains a better retirement standing.
The Versorgungsausgleich can be waived by the spouses if both are represented by a lawyer. This makes sense, if the pension claims are very small or run to about the same amount.
4. Household items
During the time of separation one of the spouses may ask for the use of one or more of the household items.
Only in case of a divorce will the court, if asked, make a ruling on the final distribution of household items including the furniture. Cars usually belong to household items, but there are exceptions.
It is very preferable to agree on the distribution of household items without taking the matter to court.
5. Custody and visitation rights (Sorge- und Umgangsrecht)
There is no change on joint custody for minors after a divorce. Only in matters of some importance does the parent with which the children stay have to ask for permission from the other parent. This applies to school choice, application for passports, important medical treatments and some financial matters like opening a bank account for the child. The local family court can be asked for a ruling on any matter where consent from the other parent is needed, but not provided (Regelung eines Teilsbereichs der elterlichen Sorge). Only in very grave cases can the court be asked for a decision on full custody (Übertragung des Sorgerechts) .
Quite often arguments arise on the matter of visitation rights. The local youth agency (Jugendamt) can be contacted in these cases and will try to find a solution by speaking to both parents. But the youth agency cannot make a binding decision on that. So if the issue cannot be resolved between the parents, the family court can be asked to make a binding ruling on that. The ruling can be enforced with fines.
6. Jointly owned property
Jointly owned property leads to a lot of disputes after a separation. Quite often there are also mortgage payments to take care of.
Jointly owned property usually should be sold after the separation or divorce. The proceedings from the sale are split evenly between the spouses. It does not matter at all, which of the spouses made the mortgage payments during the marriage.
A sale is only possible, if the spouses can agree upon it. Quite often they do not, at least initially. If a sale is not possible because one of the spouses is basically blocking the proceedings, the only solution is an application to the local court for a forced sale (Teilungsversteigerung). The court will then evaluate and auction off the property. Financially this is usually not the best solution, as the cost of the procedure (evaluation, court fees, possibly lawyer´s fees) is quite substantial and the sale price is often lower than what you could get by selling the property yourself. Also, a forced sale of a family home is usually possible only after the divorce, not before.
What other implications does jointly owned property have? Take for example the - admittedly quite stereotypical - case, that the husband moves out and the wife stays in the house with the minors. The husband has paid for the mortgage during the marriage, the wife has no income of her own.
The husband keeps paying for the mortgage. He could claim back half of his payments after the beginning of separation. He could also claim a compensation for the usage (basically a rent) of his half of the house by the wife.
The wife, on the other hand, has an alimony claim against her husband.
This situation is usually solved within the calculation of the alimony (spouse support) claim. The complete mortgage is subtracted from the husband´s income. If the husband does not claim a monthly rental payments from his wife (for using his share of the property), she also has a fictitious income from rent-free living, making her support claim smaller. If the husband also keeps paying for the running cost of the house (by law this cost have to be paid by the wife, who utilizes the house), these cost can be subtracted from his income as well. So, basically, the situation is resolved by a smaller alimony claim. This works only if the support claim is substantial because of the large difference in income.
The situation also becomes much more difficult once the alimony claim ends, usually several years after the divorce. So it´s best to take care of that in time by selling the house and paying off the mortgage.
A joint tax declaration is always better, as it leads to a reduced tax rate. It can be still made for the year of separation, even if the separation took place in the beginning of the year. A joint tax declaration is especially advisable, if the taxes were paid on the basis of Lohnsteuerklasse (LSK) III and V. The spouses have to agree on a joint tax declaration and it is possible to sue the other spouse for his agreement to it.
In the year following the separation the taxes are calculated in the same way as for unwed people. That also means that the LSK needs to be changed to I or at least to IV (or II, if you take care of minors). This is especially important, if you have been taxed with LSK III during the separation year.
For better understanding: The LSK III/V reflect the possible result of a joint tax declaration of spouses not living in separation at the beginning of the year.
Taxes automatically deducted monthly from your work income are just advance payments to the state tax agency (Finanzamt), on the assumption that the yearly income will be the monthly income, multiplied by 12. So you always should declare taxes (Einkommensteuererklärung), if you haven´t worked all year, as you get some (or a lot) of the advance payments back.
8. Divorce proceedings
To file for a divorce, you need to be represented by a lawyer. The same is true, if you take the matters of support / alimony or the equalization of marital gains to court.
If it is only about getting divorced, the other spouse is not required to have legal representation.
Contrary to what you might have heard, you do not need your spouse´s consent to the divorce. A year of separation is usually enough proof that the marriage has failed. The court also does not need any specific reasons for the divorce.
After your lawyer has filed for the divorce, the court sends the divorce papers to your spouse (or his lawyer).
If the court is not required by law or otherwise not asked by one of the parties to equalize the pension claims, it then sets the date for the divorce hearing. Otherwise it informs the pension companies of the procedure and asks them to provide information on pension claims which have been acquired during the marriage. The gathering of information on that usually takes several months and the spouses have to participate in the process.
During the ongoing proceedings it makes sense to decide, if other matters (Folgesachen) should be introduced into the divorce procedure. If there is a dispute concerning the postmarital (after divorce) spouse support / alimony, it makes sense to ask the court for a ruling on that, together with the divorce decision. You should contact your lawyer and discuss that question with him or her at the very latest when you are informed of the date of the divorce hearing. If you apply for postmarital support after the divorce in a separate court procedure you will face much higher expenses. The same is true for the equalization of marital gains.
Speaking of the cost:
Most legal costs in Germany are tied down to the "value of the matter" (Streitwert, Verfahrenswert). Different matters of the (divorce) proceedings have different values.
In the most basic divorce procedure you only have the "value" of the divorce itself. The "value" is set by law to the combined income of both parties, multiplied by three.
Monthly net income husband 2.000,00 €
Monthly net income wife 2.000,00 €
The "value of the matter" would be 4.000,00 x 3 = 12.000,00 € in this case. This sum is not to be confused with the cost, it´s just a calculation basis.
What legal cost result from this?
There are tables in which you could look that up:
Court fees (share for each spouse) 267,00 €
Your lawyer´s fees 1.820,70 €
Now let´s say you also have applied for spouse support to the monthly amount of 1.000,00 €. The "value" of this claim is also 12.000,00 € (1.000,00 x 12 in this case, i.e. the yearly value of support payments).
So you would have a combined value of 24.000,00 €, leading to these legal costs:
Court fees (share for each spouse) 371,00 €
Your lawyer´s fees 2.368,10 €
Your lawyer´s fees may be higher in that case, if you settle the matter of alimony in court.
Germany has a state help system for individuals who cannot afford to pay the legal fees. In family law it is called Verfahrenskostenhilfe (VKH). Your lawyer will apply for that, if it is obvious that your income or your assets are not sufficient to pay for his work. The German state will then initially pay for all your legal expenses. But there is some chance that the state will want to have its money back, if your income or your assets improve during four years after the divorce. The court will write to you several times during this period and ask to provide proof on current income and assets.
What else to do after the divorce?
First, the divorce decision needs to gain legal validity (Rechtskraft). This happens automatically after a month, if none of the parties appeal the divorce decision (this is quite rare) or any of the court´s decisions on related matters, like postmarital support. If both parties have legal representation in the divorce hearing, they can waive their right to appeal and make the divorce take effect immediately.
There is nothing like a "divorce certificate" in Germany. The only proof of the divorce is the court´s written ruling on it, which you get from the court or your lawyer, if you had one.
If you are a foreigner and your marriage has been registered in your home country, you will probably want to have the divorced legally recognized in your home country. Usually you will need an apostille (Apostille) for that. This is an internationally accepted proof of the authenticity of a legal document. You get the apostille (it is a piece of paper that is physically attached to the divorce ruling) from the higher court (Landgericht), which often but not always is located in the same court building as the family court that has handled your divorce. After that you need to present the divorce decision with the apostille to the authorities of your home country.