Family Law 2024 Comparisons

Process and Timeline for Divorce

In Germany, divorce can only be granted by a court. The application for divorce must be submitted to the court by a lawyer. At the same time as the divorce, the pension equalisation is carried out ex officio – ie, the division of the pension entitlements achieved during the marriage. To clarify the pension equalisation, the parties must complete a questionnaire sent to them by the court in which they must state which pension schemes they have maintained during the marriage (eg, statutory pension insurance, private pension insurance, company pension scheme, civil servant’s pension, etc). The court will then write to the individual pension providers and ask them to provide information about the pension entitlements earned during the marriage, which will then be divided equally between the spouses. The period of marriage is the time from the first of the month in which the marriage was entered into until the last of the month in which the application for divorce is served. The divorce proceedings take about two months if the pension equalisation has been excluded and all subsequent matters have been settled. If the divorce and the pension equalisation are to be carried out, the proceedings usually take between six months and a year; if subsequent matters (eg, maintenance, matrimonial property regime) are pending, the proceedings can take correspondingly longer.

A further prerequisite for divorce is that the spouses have lived apart for at least one year.

The Rules for Service of Divorce Proceedings

The court serves the divorce petition ex officio to the other spouse after it has been filed.

In Germany, the date of service of the divorce petition sets the key date for the implementation of the pension equalisation (the marriage period for the calculation of the pension equalisation ends on the last day of the month in which the divorce petition was served) and the equalisation of accrued gains (the key date for the calculation of the so-called final assets is the date of service of the divorce petition).

Before the court takes action, the applicant must pay the court costs, which are calculated according to the income and assets of the spouses. Initially, the petitioner alone must pay the court costs. After the divorce, the other spouse must reimburse half of the costs. If the applicant only has a low income, they may be eligible for legal aid.

Religious Marriages and Divorces

In Germany, a marriage cannot be effectively divorced by means of a religious divorce. A private divorce carried out in Germany violates the divorce monopoly of the German courts. In Germany, a marriage can only be divorced by a court judgment, even if it is a private divorce of foreigners that is effective under the divorce statute of their home country. A divorce carried out by religious act in Germany cannot be recognised even if a state authority notarises the divorce and/or it is later registered in the civil register of the home country. The registration of the divorce in the home country has no formative effect. A private divorce carried out before a foreign embassy or consulate in Germany cannot be recognised either. Under certain conditions, a religious divorce carried out abroad can be recognised in Germany; in particular, it must not violate the so-called ordre public.

For the question of whether a religious marriage can be recognised in Germany, it is not decisive whether the marriage was concluded in accordance with state or religious law in the spouses’ home country, but whether the marriage is recognised as valid by the home country; ie, whether the formal requirements existing there have been complied with.

Other Processes in Relation to Ending a Marriage

In addition to divorce, an annulment of the marriage is possible under certain conditions. A marriage can be annulled if it was not formally validly concluded – ie, if the formal requirements were not met or if one spouse was in a state of unconsciousness or temporary mental disorder when the marriage was concluded or if one spouse did not know when the marriage was concluded that it was a marriage, or a spouse was induced to enter into the marriage by fraudulent misrepresentation of such circumstances that would have prevented them from entering into the marriage if they had been aware of the facts and had properly assessed the nature of the marriage; this does not apply if the deception concerns financial circumstances or was perpetrated by a third party without the knowledge of the other spouse or if one spouse was unlawfully induced to enter into the marriage by threats, or if both spouses agreed at the time of the marriage that they did not wish to enter into any marital obligations.

Jurisdictional Grounds in Order to Commence Divorce Proceedings

A marriage can be divorced in accordance with § 1565 paragraph 1 BGB if it has broken down. The marriage has broken down if the spouses’ cohabitation no longer exists and the spouses cannot be expected to restore it. The breakdown of the marriage is the only ground for divorce under German law.

According to § 1353 paragraph 1 of the German Civil Code, two persons of different or the same sex may enter into marriage. Same-sex couples are subject to the same requirements for divorce as non-same-sex couples.

Germany is a member state of the EU, so the provisions of the Brussels 2b Regulation apply to the question of the international jurisdiction of the German courts for divorce proceedings. These apply to the divorce of both same-sex and different-sex marriages.

Accordingly, the German courts have international jurisdiction for divorce proceedings if:

• both spouses have their habitual residence in Germany;
• both spouses last had their habitual residence in Germany, provided that one of them still has their habitual residence there;
• the respondent has their habitual residence in Germany;
• in the case of a joint application, one of the spouses has their habitual residence in Germany;
• the applicant has their habitual residence in Germany if they have resided there for at least one year prior to filing the application; or
• the applicant has their habitual residence if they have resided there for at least six months immediately prior to filing the application and are a German national.

Furthermore, the German courts have international jurisdiction for divorce if both spouses are German nationals.

If neither of the spouses is resident in Germany, the Berlin Schöneberg Local Court has local jurisdiction for divorce proceedings. In cases where the spouses are habitually resident in Germany, local jurisdiction is determined in accordance with the Family Procedure Act, depending on various factors, either on the habitual residence of the petitioner in Germany or of the respondent.

A spouse may object to the international jurisdiction of the German court if another court of a member state has already been seized before the German court with regard to the divorce proceedings. In this case, the court seized later must stay the proceedings in accordance with Article 20 of the Brussels IIb Regulation until the jurisdiction of the court first seized has been clarified.

Grounds for Jurisdiction for Commencing Financial Proceedings

The international jurisdiction of the German courts for matrimonial property law proceedings is determined by the EU Matrimonial Property Regulation for court proceedings initiated on or after 19 January 2019, and for marriages/partnerships and choice of law agreements on matrimonial property law concluded on or after 20 January 2019.

A party may contest the international jurisdiction of the German courts in court proceedings if, for example, there is primary jurisdiction under the German-Iranian Establishment Agreement or a double pendency of proceedings is pending in different participating member states of the EU Matrimonial Property Regulation. In the event of other pendency in a non-participating EU member state, autonomous German law applies. Pursuant to Section 261 (3) No 1 of the German Code of Civil Procedure, the German courts have exclusive international jurisdiction in this case if the proceedings were initially pending in Germany.

If matrimonial property proceedings were first pending in another country, an application can be made to suspend the proceedings that are later pending in Germany.

Within the scope of application of the EU Regulation on Matrimonial Property Proceedings, if divorce proceedings are pending in a member state, there is also annex jurisdiction for the matrimonial property case in accordance with Article 5 paragraph 1 of the EU Regulation on Matrimonial Property Proceedings. If no divorce proceedings relating to the matrimonial property case are pending in a participating member state of the EU Matrimonial Property Regulation, the German courts have international jurisdiction within the scope of the EU Matrimonial Property Regulation if the parties have agreed that the German courts have international jurisdiction or if the spouses have their habitual residence in Germany at the time the court is seized or if the spouses last had their habitual residence in Germany, provided that one of them still has his or her habitual residence there at the time the court is seized, or if the defendant in the proceedings has their habitual residence in Germany at the time the court is seized, as both spouses are German nationals at the time the court is seized.

Service Requirements in Financial Proceedings, Process and Timeline

If an application for property settlement is filed with the court, the court will serve the application on the defendant after the advance payment of court costs. When the application is served, the court sets a deadline for the defendant to submit a defence, whereby this is an emergency deadline within which the defendant must inform the court that they are defending against the application, otherwise an order by default may be issued against them. At the same time, the court sets a deadline for the defendant to respond to the application.

The duration of the proceedings cannot be precisely assessed in advance; it essentially depends on whether the court has to take evidence – eg, by obtaining expert opinions or hearing witnesses.

How the Court Deals With the Division of Assets in a Divorce

The statutory matrimonial property regime in Germany is the community of accrued gains pursuant to Section 1363 of the German Civil Code. Each spouse has a right to information from the other spouse in accordance with Section 1379 of the German Civil Code that if the matrimonial property regime has ended or one spouse has filed for divorce or claims early settlement of accrued gains, the other spouse must provide them with information about their initial assets; ie, the assets that existed on the date of the civil marriage, the assets at the time of separation and the final assets (in the case of divorce, the date of service of the divorce petition). The initial assets of a spouse also include the so-called privileged initial assets; ie, the assets that a spouse receives during the marriage as a gift or inheritance. The gain of each spouse is calculated from the difference between the initial assets and the final assets. The spouse who has made the higher gain is obliged to pay half of the difference to the other spouse.

A spouse can claim an early equalisation of gains from the other spouse regardless of whether divorce proceedings have been filed if the spouses have been separated for at least three years or the other spouse attempts to withdraw assets from the equalisation of gains or the other spouse culpably fails to fulfil the economic obligations arising from the marital relationship for a longer period of time and it can be assumed that they will not fulfil them in the future either, or the other spouse persistently refuses to provide information about their assets without sufficient reason.

If there is a dispute about the existence of assets or their value, the court will, at the request of a party, call in witnesses or experts to determine the value, for example with regard to the value of a house, a company, etc.

If an asset is owned equally by the spouses, it is included in the respective initial and final assets at half of its value. Assets belonging to one spouse alone are only included in the initial or final assets of that spouse.

As part of the equalisation of gains procedure, the court then awards the other spouse a payment claim. The other spouse cannot claim the transfer of assets, for example the transfer of a house for sole ownership, in the equalisation of accrued gains proceedings.

The concept of trusts is not recognised in Germany.

Under German law, if a spouse has a lower income than the other spouse, they can claim spousal support both for the period of separation and for the period after the divorce. Under German law, maintenance can be claimed on the grounds of caring for a child, old age, illness or infirmity, unemployment or as so-called top-up maintenance. Top-up maintenance must be paid if there is a relevant difference in income between the spouses despite both spouses working full-time.

The spouse who asserts the maintenance claim has an obligation to work after the end of the year of separation. During the year of separation, the spouse must take up a job if they did not work during the marriage and not top up an existing job. After the end of the year of separation, appropriate gainful employment must be taken up. Appropriate employment is employment that corresponds to the spouse’s education, skills, previous employment, age and state of health, provided that the pursuit of such employment would not be unreasonable in view of the marital circumstances. In particular, the duration of the marriage and the duration and care and upbringing of a joint child must also be taken into account.

If there is a joint child or children, a spouse is not obliged to work for at least three years after the birth of the youngest child. The entitlement to childcare maintenance may be extended if this is equitable, whereby the interests of the child and the existing childcare options must be taken into account.

The entitlement to separation maintenance – ie, the spousal maintenance to be paid until the divorce becomes final, cannot be limited in time. The entitlement to maintenance after the divorce becomes final – ie, the so-called post-marital maintenance, can be limited in time, whereby the duration of the entitlement to post-marital maintenance depends on the disadvantages suffered by the spouse entitled to maintenance and how long the spouses were married in total.

In Germany, the claim for payment of post-marital maintenance can be asserted in connection with the divorce (joint proceedings). The court can then only divorce the marriage if it can also decide on the claim for post-marital maintenance at the same time.

The amount of spousal maintenance to be paid is determined by the respective income. All of the spouses’ income counts as so-called maintenance income, according to which the maintenance claim is calculated. The court calculates the annual income of each spouse and then calculates the average monthly income. The so-called maintenance-related liabilities – eg, work-related expenses for travel costs between home and work, health insurance, pension contributions, etc, must be deducted from this. If child maintenance is paid for one or more children, this must also be deducted, as the claim to child maintenance takes precedence over the claim to spousal maintenance under German law. One-tenth of the income is deducted from the income calculated in this way. If the spouse has a company car or lives rent-free in their own property, the corresponding benefit in kind is added to increase income. The income of the spouses calculated in this way is added together, and the total income then represents the so-called marital needs. The spouse entitled to maintenance is entitled to half of this. The income earned by the spouse must be deducted.

Prenuptial agreements and postnuptial agreements are recognised by the German courts. If the validity of a prenuptial agreement or an agreement on the consequences of divorce is challenged by one of the spouses, the German court carries out a review of validity and exercise in accordance with supreme court case law. As part of a two-stage review, the court examines whether the marriage contract leads to a one-sided, immoral distribution of burdens to the detriment of one spouse at the time of conclusion of the marriage contract. As part of the exercise review, it is examined whether the marriage contract, even if it did not lead to a one-sided distribution of burdens at the time of conclusion, leads to a one-sided distribution of burdens at the time at which one spouse invokes it – eg, in the case of divorce. This may be the case, for example, if the spouses have ruled out a claim to post-marital maintenance and the implementation of pension equalisation because they had planned a childless marriage, but then, contrary to the original plan, children were born of the marriage.

There are no special rules under German law for the dissolution of a non-marital relationship. Non-marital partners can regulate the division of their property in the event of a separation in a notarised agreement. However, German law does not provide for maintenance claims for non-marital partners, with the exception of the right to childcare maintenance if there is a joint child or joint children. If there is a joint child or joint children, the parent who primarily cares for the child is entitled to childcare maintenance. During the first three years of the youngest child’s life, the parent is not obliged to work. After this, the maintenance entitlement is extended, as in the case of legitimate children, depending on the care needs and care options of the joint child.

However, the maintenance claim of the non-marital partner is not based on the combined income of the partners, as is the case with spousal maintenance, but the needs of the non-marital partner are based on the income that they earned before the birth of the joint child, and is limited to this amount.

Court decisions regarding the division of property or spousal or child maintenance are enforceable. The enforceable title must be served on the opposing party and the court must provide the title with the so-called enforcement clause. The bailiff can then be instructed to carry out the enforcement.

In the EU, the enforcement of matrimonial property judgments is governed by the EU Matrimonial Property Regulation, of maintenance judgments by the EU Maintenance Regulation and, within the scope of application of the 2007 Lugano Convention or the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Maintenance, by the provisions of these conventions.

Family law proceedings are not public in Germany. Only the judgments handed down are to be announced publicly.

There is no statutory mediation in family matters in Germany. The parties involved can appoint a mediator on their own responsibility and attempt to settle their financial disputes through mediation. However, an out-of-court agreement on equalisation of accrued gains or post-marital maintenance is only effective if it is notarised. Alternatively, such an agreement can be recorded in court as part of the divorce proceedings in which case both parties must be represented by a lawyer.

The international jurisdiction of the German courts for child custody matters is primarily based on the Brussels IIb Regulation. This regulation applies directly in all EU member states (except Denmark). According to Article 7 paragraph 1 of the Brussels IIb Regulation, the German courts have international jurisdiction for proceedings relating to parental responsibility if the child is habitually resident in Germany at the time the application is made. It is possible to apply a jurisdiction agreement in accordance with Article 10 of the Brussels IIb Regulation if the child has a substantial connection to Germany, in particular if at least one of the holders of parental responsibility is habitually resident in Germany, the child was previously habitually resident in Germany or the child is a German national. Furthermore, an agreement on the place of jurisdiction is possible if all parties to the proceedings have agreed on the jurisdiction of the German courts at the time the German court is seized or have expressly acknowledged this in the course of the proceedings. If the habitual residence of the child cannot be established and there is no agreement on jurisdiction, the German courts also have jurisdiction based on the presence of the child in accordance with Article 11 of the Brussel IIb Regulation. In relation to non-EU member states, the question of the international jurisdiction of the German courts is assessed in accordance with the Hague Convention on the Protection of Children. If the child is habitually resident in a state party to the Hague Child Protection Convention which, with the exception of Denmark, is not also a member state of the EU, the question of international jurisdiction is governed by the Hague Child Protection Convention. According to Article 5 paragraph 1 of the Hague Child Protection Convention, the question of international jurisdiction depends on the child’s habitual residence.

If the child is habitually resident in a state party to the Convention for the Protection of Minors that is not bound by the Brussels II b Regulation and the Hague Convention, the Convention for the Protection of Minors applies.

The central connecting factor is always the question of the child’s habitual residence. In various decisions, the European Court of Justice has drawn up a list of criteria for determining the habitual residence of a child. According to this, not only the physical presence of the child is sufficient to establish habitual residence, but habitual residence is an expression of a certain integration into a social and family environment, which is why it must be examined in each individual case where the child has its habitual residence. Among other things, the duration and circumstances of the stay in the country concerned and the reasons for the stay must be taken into account, as well as criteria such as the child’s nationality, nursery school attendance, language skills and family and social ties. The habitual residence must be the actual centre of the child’s life.

Contact With the Child

According to § 1684 of the German Civil Code, the child has a right to contact with each parent and each parent is obliged and entitled to contact with the child. Furthermore, in accordance with § 1685 paragraph 1 of the German Civil Code, grandparents and siblings also have a right to contact with the child if this is in the child’s best interests. The same applies to close relatives of the child in accordance with § 1685 paragraph 2 Section 1 of the German Civil Code.

If there is a dispute about the right of access to a child, the person entitled to access is entitled to file proceedings for the settlement of access rights with the competent family court; ie, the court in whose district the child concerned has its habitual residence. Proceedings for the settlement of rights of access are subject to the priority and acceleration requirement pursuant to Section 155 of the Family Procedure Code. This means that these proceedings must be conducted with priority, which is why the court must hold a hearing no later than one month after an application for the regulation of access rights has been filed. If the parties involved are unable to reach an agreement on access, the court shall determine the periods of access in an enforceable court order.

Custody and Parental Responsibility After the Breakdown of a Relationship or Marriage

If the marriage ends in divorce, joint parental custody remains in place unless one of the spouses initiates parental custody proceedings in court and applies for sole parental custody to be transferred to them. In the case of a non-marital relationship, joint parental custody does not automatically exist in Germany after the birth of a child. If the parents are not married to each other at the birth of a child, joint parental custody only exists if the parents jointly submit a so-called custody declaration, which is possible at the competent youth welfare office if they marry each other, or if one of the parents applies to the family court for joint parental custody.

When it comes to the question of the extent of contact between the child and the other parent or the question of whether parental custody should be exercised jointly or by one parent alone, the German court always focuses first and foremost on the child’s welfare.

The court may only exclude contact with the child if no less drastic means are available, such as ordering accompanied contact.

Child Maintenance

In Germany, child maintenance is calculated according to the so-called Düsseldorf table, which is revised at regular intervals by the Düsseldorf Higher Regional Court. The last adjustment took place on 1 January 2024. The Düsseldorf table is divided into different income groups, whereby this is the adjusted net income of the person obliged to pay maintenance, as well as different age groups. With regard to the calculation of the adjusted monthly net income, please refer to 2.4 Spousal Maintenance. Half of the child benefit paid is deducted from the table amounts shown in the Düsseldorf table. The child maintenance amounts shown in the Düsseldorf table are the basic requirements, which are essentially intended to ensure that the child is provided for in terms of clothing, food and housing. The child maintenance amounts shown there according to the lowest income group represent the so-called minimum requirements of a child. The parent who is obliged to provide cash maintenance is subject to a stricter obligation to earn a living; ie, they must exhaust all earning opportunities and, if necessary, take up a part-time job in order to ensure the so-called minimum child maintenance.

According to the current legal situation, the parent who predominantly cares for the child is not obliged to pay child maintenance, as they fulfil their maintenance obligation by caring for the child; the other parent, who does not care for at least half of the child, is obliged to ensure full cash maintenance. Within the framework of a so-called parity alternation model – ie, if the child is cared for by both parents in equal shares, equalisation claims for the payment of child maintenance must be calculated according to the parents’ income. There is currently a legislative initiative in which a draft bill has already been submitted, according to which it is planned that in future the extent to which each parent looks after the child will be taken into greater consideration when calculating child maintenance. However, it is not yet clear in what form and when the reform law will come into force.

The parents of the child can reach an out-of-court agreement on the amount of child maintenance to be paid. If the child’s parents wish to draw up an enforceable title for child maintenance, it is also possible to have a free document drawn up at the responsible youth welfare office regarding the obligation to pay child maintenance, which is then enforceable like a court title.

In court proceedings, the claims for payment of child maintenance are not limited in time, but the parent who later claims that the maintenance obligation no longer applies or has been reduced must in this case initiate so-called modification proceedings in court if the child entitled to maintenance or their legal representative does not voluntarily waive their rights under the existing maintenance title.

Until the child reaches the age of majority, the parent with whom the child predominantly resides can assert the claim for child maintenance in their own name within the framework of divorce proceedings; outside of divorce proceedings, the maintenance claim is asserted in the name of the child, legally represented by the parent with whom the child predominantly resides. The child can only assert the maintenance claim directly in court once they have reached the age of majority.

If there is a dispute between the child’s parents on certain issues, such as schooling, medical treatment or religion, the court can transfer certain areas of parental responsibility, such as the right to choose the child’s school or health care, to one parent to exercise alone.

If there are indications of parental alienation and a child refuses to have contact with the other parent, the court usually asks for a child psychologist’s expert opinion on the question of whether it is in the child’s best interests to have contact against the child’s will.

Children are not heard as witnesses in court. However, in child custody cases, the court is regularly heard by the competent judge and the guardian ad litem. The older and more mature the child is, the more its will must be taken into account in the court’s decision. However, the will of the child is not the only decision criterion, but the court also takes into account in its decision whether the parents’ upbringing is suitable, as well as whether the parents have sufficient attachment tolerance, and also takes into account the principle of local and personal continuity.

The parties involved can instruct a mediator out of court to try to find an out-of-court settlement. The law does not provide for mediation in financial disputes in family law proceedings. In court proceedings, however, a conciliation hearing is held first and the court first tries to reach an amicable settlement between the parties involved. An out-of-court agreement is only enforceable if it is reached as part of a so-called lawyer’s settlement, is notarised or if, for example, an enforceable deed is drawn up free of charge at the responsible youth welfare office with regard to child maintenance.

Family law proceedings are not public in Germany. Only the judgments handed down are to be announced publicly. Insofar as judgments in family law matters are published, the names of the parties involved are always anonymised.