Checklist for (uncontested or contested) Divorce Proceedings in Germany
The German statutes dealing with the divorce of a marriage and the substantive requirements for the same are s. 1564 to 1568 German Civil Code (Bürgerliches Gesetzbuch, BGB). The specific civil procedure rules applicable to divorce cases in Germany are contained within s. 133 FamFG (German Code on Family Matters) which also refers to certain sections of the German Code of Civil Procedure.
Different sets of procedural rules apply to the various aspects of a German divorce (e.g. rules for the divorce itself, for maintenance, property separation, pension redistribution, child custody etc.). This makes it somewhat tricky to identify the correct set of rules, even for German lawyers if they are not experts in family law matters. In case you think we make German divorce procedure rules sound overly complicated, here is a typical Family Procedure statute. Check it out for yourself:
Section 113 Application of Provisions from the Code of Civil Procedure
(1) In marital matters and in family dispute matters, sections 2 through 22, 23 through 37, 40 through 45, 46 sentences 1 and 2, sections 47, 48, and 76 through 96 shall not be applicable. The general provisions of the Code of Civil Procedure and the provisions of the Code of Civil Procedure concerning proceedings before the Regional Courts shall be applicable mutatis mutandis.
(2) In family dispute matters the provisions of the Code of Civil Procedure concerning proceedings on claims arising from a deed, proceedings on claims arising from a bill of exchange, and proceedings for payment orders, shall apply mutatis mutandis.
(3) In marital matters and family disputes, section 227 (3) of the Code of Civil Procedure shall not be applicable.
(4) In marital matters, the provisions of the Code of Civil Procedure in respect of: 1. the consequences of ignoring or refusing to provide explanations of facts; 2. the prerequisites for modification of the lawsuit; 3. the determination of the form of procedure, an early first court hearing, preliminary proceedings conducted in writing, and the statement of defence; 4. a conciliation hearing; 5. the effect of admissions before a court; 6. acknowledgment; 7. the consequences of ignoring or refusing to provide explanations concerning the authenticity of documents; and 8. waiver of placing the opponent, witnesses, or experts under oath shall not be applicable.
(5) Upon application of the Code of Civil Procedure, in place of the term: 1. “procedure” or “legal dispute” the term “proceeding,” 2. “complaint/action” the term “application,” 3. “plaintiff” the term “applicant,” 4. “defendant” the term “respondent,” 5. “party” the term “participant” shall be used.
As you can see, a German family lawyer must apply many different procedural rules, depending on what exact claim he or she is making. Rules of evidence may be different, as may terminology and the options to appeal a decision.
Why are German divorce procedure rules so complicated?
Up until the introduction of the FamFG in 2009, German divorce matters fell under the rules of the German Civil Procedure Code (Zivilprozessordnung, in short ZPO). While there was a special section in the German ZPO dealing with divorce, the underlying “spirit” of the German ZPO was considered to be too aggressive and confrontational for family court matters.
In order to change this and make divorces (and other family law matters more “civil”), the new set of rules introduced by the German FamFG strives to make a divorce and everything that comes with it (maintenance and support obligations, separation of family assets, child custody and child visitation issues) less of a legal battle between “parties to a civil lawsuit” but more of a constructive process of finding consensual solutions wherever possible.
This is also the reason for the different legal terminology in German divorce cases compared to normal civil litigation (participant instead of party, application instead of complaint etc.). So, if the spouses are still on reasonable speaking terms, a German divorce can be very quick and relatively stress free. This is especially true if both parties, or — to use the correct terminology — both participants to the divorce are willing to agree on the financial issues, as well as on child custody and visitation rights issues in a separate side agreement, called a Trennungs- und Scheidungsfolgenvereinbarung (Separation Agreement, Marital Settlement Agreement).
If the spouses are willing to take that route, then pretty much the only thing that remains for the German family court (Familiengericht) to do is to issue the divorce decree itself, i.e. the final court order on divorce. In German, this is called the Scheidungsbeschluss, s. 1564 German Civil Code and , s. 142 para. 1 FamFG), or — in old terminology prior to the FamFG — it was called Scheidungsurteil. Such an “amicable” or uncontested divorce in Germany will take about 4-8 months.
If, however, the spouses — for whatever reason — can’t agree on all divorce related aspects amicably, the German divorce proceedings will take significantly longer, because statute s. 142 FamFG regulates that the divorce decree shall not be issued until all divorce related family matters have been sorted out, either by the participants or by the court. Therefore, our German family law experts always stress the fact that — wherever possible — the spouses should not make a divorce any more aggressive and confrontational than it has to be.
Checklist: Necessary Steps of a German Divorce
1. Legal Grounds for Divorce under German Law:
In 1976, Germany abolished the fault-divorce principle (Verschuldensprinzip). Since then, German substantive law (s. 1565 para. 1 German Civil Code) applies a no-fault divorce system and only knows one single ground for divorce, the failure (i.e. breakdown) of the marriage. The German expression is “Scheitern der Ehe” (failure of marriage), also called “Zerrüttungsprinzip”.
According to the definition contained in s. 1565 para. 1 sentence 2 German Civil Code, the marriage has irretrievably broken down (failed) if the marital community of the spouses (eheliche Gemeinschaft) no longer exists and it cannot be reasonably expected that the spouses will restore it, i.e. that they will reconcile. It is up to the German Family Law judge (Familienrichter, usually just one judge) to assess the state of the marriage and to make a prediction as to the chances of any reconciliation. In practice, of course, a judge has no way of knowing how a husband and wife really feel. Thus, German law provides for and German courts do apply two rules in order to determine the fate of a marriage. The irretrievable breakdown of a German marriage shall be presumed (conclusive presumption, in German “unwiderlegliche Vermutung”), if:
- if the spouses have lived separate for at least one full year and both spouses want to be divorced, i.e. one spouse files for divorce and the other spouse gives consent to being divorced (s. 1566 para. 1 German Civil Code); OR
- if the spouses have been separated for three years (s. 1566 para. 2 German Civil Code).
There are thousands of German court rulings on the issue of when und under which conditions exactly a couple has been genuinely separated. A German couple can be “legally separated” while still living in the same house or even apartment (s. 1567 German Civil Code). The decisive factor is whether they “live together” or not. In practice this means, that they must not have meals together, one spouse should not do the other spouses laundry etc. Obviously, they must not share the same bedroom if they want to convince the German family court judge that they have split up for a full year already, in spite of having lived in the same property.
A highly debated legal issue is also whether a brief attempt to reconcile the marriage does set back the clock (usually, they do not). So, even if the two — a few months into being separated — try to live together again but after a few days or even weeks find out that they still hate each other, they do not have to start the one year term from the beginning.
If a spouse wants a quicker divorce, i.e. does not want to wait out the one year (or three year) separation period, that spouse can claim one of three statutory exceptions to the principle of a mandatory separation period. These hardship clauses (Fälle der Unzumutbarkeit) which allow for a quicker divorce, for instance in cases of physical or psychological abuse, are laid down in s. 1565 para. 2 and s. 1568 German Civil Code. The requirements are rather strict though and German family courts are reluctant to grant spouses such a fast track divorce.
2. Prepare and Execute the Marital Settlement Agreement
Wherever possible, the spouses (and their respective German legal counsels) should negotiate the terms of a Scheidungsfolgenvereinbarung (Marital Settlement Agreement). Ideally, this agreement contains all aspects that need to be dealt with: financial matters, child custody, visitation rights etc. There are certain restrictions under German law which prevent the spouses to waive all their rights. Therefore, German law also requires such a separation agreement to be recorded before a German notary public.
This German Marital Settlement Agreement can be signed at a very early stage, i.e. well before the parties even file for divorce. Taking care of these child custody and financial matters early on removes much of the tension and is thus a great way to keep on good speaking terms. It also spares the children having to watch their parents quarrel for months.
But in some case, the spouses are simply not willing or able to come to an amicable solution. In such a case, the German family court will have to decide on every single issue, from maintenance and asset separation to pension splits and everything child related. This, obviously, can take months or even years.
3. Filing for Divorce in Germany (Divorce Petition)
Either spouse may file for divorce with the competent German Family Law Court (Familiengericht) in the court district where the couple has (had) their residence. Unless the divorce is based on a hardship clause, the application shall be filed approximately two months before the separation period ends, i.e. after about 10 years of living separate. According to s. 133 FamFG, the divorce application (divorce petition) must contain at least the following information:
- marriage certificate
- name(s) and date(s) of birth of minor children and their place of usual residence; birth certificate(s)
- a statement whether the spouses have reached agreement on the issues of parental custody, visitation, child support, maintenance payments to spouse, the marital home and household property
- whether there are any unresolved legal matters pending.
At least one spouse must be duly represented by a qualified German legal counsel
4. Divorce Decree (Final Judgment of Divorce)
Once all aspects surrounding the separation and divorce have been resolved and the judge is convinced of the irretrievable breakdown of the marriage, the German Family Law Court hands down the divorce decree (Scheidungsbeschluss, or Scheidungsurteil in old terminology). This divorce decree is, however, not immediately binding. Unless both spouses waive their right to appeal the decision (Verzicht auf Rechtsmittel), the divorce only becomes legally binding (rechtskräftig) two weeks from the day the written court order has been served to the parties.
Our law firm specialises in U.S.-German and Anglo-German legal matters. This includes drafting pre-nuptial agreements for German-American and German-British couples. We also advise and represent international couples with regard to separation and divorce in Germany. In case you are in need of an English speaking German family lawyer, don’t hesitate to call or send us an email.
More information on litigation and legal fees in Germany is available in these posts:
- How to divorce a German (and where)
- German Family Lawyer Information and Questionnaires
- German Litigation Experts explain Civil Procedure Rules
- German Laws relating to Civil Litigation
For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.
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