Procedure, costs, distribution of assets and rights of the spouse
If you and your spouse decide to end your marriage permanently, the process of obtaining a divorce in Germany is relatively simple. However, things can get complicated when additional aspects come into play, for example, if you have children together or if you own shared property or assets. To navigate through these many legal aspects, it is strongly advised to consult a lawyer specialized in German family law, because Schlun & Elseven Rechtsanwälte explain.
Married spouses have the possibility to divorce in Germany as long as at least one of the partners has German residence or citizenship. This is the case even if you did not get married in Germany originally.
Although the actions of one or both spouses can contribute to the breakdown of a marriage, in Germany you are not required to provide a reason for your divorce. The law operates a so-called principle of “rupture” which does not seek to designate the “fault” of one of the partners.
Although the process of filing for divorce itself is relatively simple, there are many legal aspects to be considered before initiating proceedings, from the division of property and residence permits to custody and access to children. . Here’s a quick rundown of some things you should think about.
Divorce in Germany: reasons and procedure
German law provides for the possibility of divorce if the marriage has failed. Generally, this is the case when the marital partnership no longer exists and this partnership cannot be expected to be restored.
Generally, this failure is proven by the fact that the couple no longer lives together. If both partners want to divorce, one year of separation is required. If only one of the partners wishes to divorce, the law requires proof that they have lived apart for three years. However, exceptions can be made to this requirement, for example, if waiting for the additional year would cause difficulty for one of the partners. In cases like these, it can be waived.
If you are not German, you also have the option of having your case heard in accordance with the applicable laws in your home country – for example where there is no obligation to separate for at least one year. Upon request, German courts will occasionally allow the use of foreign law in divorce cases.
In the event of a divorce, it is best to work with a legal professional to ensure that it is executed in the legally required manner. If the divorce is amicable, it may be in the best interests of the parties to have a common attorney to oversee the matter. However, if certain aspects of the divorce are contested, having both parties have a legal representative will help ensure that they both receive expert legal assistance.
Divorce costs in Germany vary widely depending on several factors, including the so-called “divorce value”, and whether it is contested or out of court. In contested cases, multiple attorneys may be involved and resolving asset disputes will involve more work, leading to higher costs.
The value of a divorce is not the same as legal fees or court costs. Divorce value is a legal necessity that must be determined to determine the cost that the court and attorney will charge. It is based on several factors, including:
- The net income of the partners
- The number of children the partners have
- How long have the partners been married
- If the couple has their respective pension rights divided equally between them
- The value of the assets held by the partners in common
The total cost of a divorce varies greatly from case to case. Much depends on the complexities involved, as well as the time spent on legal work on both sides.
Asset Allocation: Business & Personal
A critical consideration in divorce cases is how personal and business assets will be divided between the two spouses.
Personal assets considered in divorce cases include:
- Marital property
- Other assets if acquired through joint accounts or signed by both partners
- Pension plans
- stock options
Debts incurred during the marriage will also be considered as part of post-divorce partition.
For these assets or liabilities, it is essential to determine whether they are jointly owned. Liabilities will not be considered joint liabilities if not signed by both spouses. In some cases, signed contractual agreements may be considered “unfair” for both parties to pay if they are exclusively for the benefit of one spouse.
The protection of company assets should be a priority for entrepreneurs during a divorce in Germany. If there is one, a prenup provides a clear path in these cases. For entrepreneurs and the future of their business, having a prenuptial agreement is vital, as all assets obtained during a marriage are considered the shared accrued earnings of both spouses. Without an agreement, in the event of a marriage breakdown, you run the risk that these assets will be divided equally between the spouses. Such a division can expose the entrepreneur to major disruptions and potentially the loss of their business.
The division of property can be complicated, especially in the case of the marital home. If the property is paid for by both spouses and on a joint account, difficulties may arise as to its division. In these cases, it is best for the spouses to come to an agreement on how to resolve the issue. For example, it may be possible for one spouse to compensate the other to take full control of loan repayments and therefore of the property itself. Other solutions include:
- Sell the property
- Redemption of the other spouse
- Divide the property
- Transfer ownership to children
Ideally, solutions to this problem should be contained in the prenuptial agreement.
In Germany, marriage contracts or prenuptial agreements are increasingly common. According to German law, they can be established before or during a marriage. These agreements must be signed in the presence of a notary to be legally binding. Prenuptial agreements are particularly important for entrepreneurs and those with significant business assets.
Prenuptial agreements in Germany are designed to define what should happen to personal and professional assets accumulated during the marriage in the event of divorce or death. Marriage contracts should be used as an insurance policy and considered by every married couple. Creating a fair prenuptial agreement at the start of a marriage will be beneficial, as it mitigates the risk of potentially bitter divorce proceedings.
There are rules about what can and cannot be included in a marriage contract. For example, spousal support cannot be denied during the period of separation, but can be lifted after divorce. However, the agreement may be deemed void if the partner who refuses the interview is not in a financial situation allowing him to reject this support. Nor can marriage contracts be used as a means of not paying child support. The court can intervene when a marriage contract is considered unfair or one-sided.
Similarly, the agreement can be challenged in case of ambiguity and lack of clarity. Parties should seriously consider consulting family law experts when seeking to draft a marriage contract.
International divorce cases: implications for residence permits
In an international marriage, it is possible that the residence permit of one of the partners is linked to his marriage. Such a situation can be very worrying. However, protections exist under Section 31 of the German Residency Law (Aufenthaltsgesetz) that allow that partner to have an additional year of residence in Germany after a divorce. This additional year applies in cases where the couple has been married for at least three years in Germany.
During this additional year, the partner must find another reason to obtain a residence permit to stay in Germany. For example, they could find qualified work and base their subsequent application for a residence permit on this status.
If the marriage lasted less than three years, the situation is more complicated. If the person’s residence permit is based solely on their marriage, they are less likely to be granted this one-year extension. The most likely situations where it will be granted are as follows:
- If domestic abuse or violence has been shown to have played a role in the divorce.
- If the couple has a child together and this child is settled in Germany and/or has German nationality.
- If the partner has obtained a visa extension based on their professional skills or as a professional trainee.
German authorities will be more inclined to consider a case favorably in situations where the person can support themselves.
Child custody following a divorce
Generally, joint custody is awarded in divorce cases in Germany. However, the guiding principle of the matter is what is in the “best interests of the child”. Even when the parents live apart, shared custody means that essential decisions about the child must be made by mutual agreement.
Sole custody is less common, but may be granted in divorce cases under the following circumstances:
- A partner relinquishes custody
- One partner sues the other for sole custody
Voluntary relinquishment of custody usually occurs when a parent feels it is best for their child or is overwhelmed by the new situation. That parent asks the family court to transfer sole custody, provided the other parent agrees.
On the other hand, a parent might feel that joint custody is detrimental to the well-being of the child. In such cases, the matter is taken to court. Courts will consider whether awarding sole custody is in the best interests of the child by considering:
- Parent’s ability to raise the child
- The attachment of the child to this parent
- The principles of support and continuity
- Respect for the child’s wishes
The best interests of the child are threatened, for example, if there is evidence of abuse or neglect by a parent.
If a parent seeks to move the child to another location, such as a foreign country, the question of custody of the child becomes essential. The parents or the parent having custody are authorized to decide on the place of residence of the child. In shared custody cases, it is best to approach the matter in a friendly manner and with the best interests of the child first.
Divorce can be a tricky and thorny issue. To ensure you receive the best legal advice, it is worth working with experienced legal professionals with in-depth knowledge of German divorce law, such as those at Schlun & Elseven Rechtsanwälte.