Grounds for Divorce

A marriage can be dissolved by divorce if it has broken down (Section 1564 of the German Civil Code, or BGB). This is assumed if the spouses are living apart and it cannot be expected that they will resume their cohabitation. If the spouses have not yet lived apart for one year, divorce can only be granted in hardship cases – eg, cases of severe domestic violence. The breakdown of a marriage is presumed unchallengeable if the parties are separated for more than one year and the divorce is uncontested. In the case of separation of more than three years, the consent of the parties is not required.

The same grounds apply for same-sex spouses.

There is no divorce based on the fault of a spouse.

Process and Timeline for Divorce

Divorce proceedings must be initiated by a lawyer filing an application with the family court. In the case of an uncontested divorce, the respondent is not required to be presented by a lawyer.

There is no predictable timeframe for divorce proceedings. If the parties reach a comprehensive divorce settlement beforehand, including the equalisation of pension rights, an uncontested divorce can be finalised within a few weeks. Otherwise, it will usually take at least six months. If, upon request, ancillary matters such as matrimonial property issues and maintenance also need to be clarified as part of the divorce proceedings, divorce proceedings can take years.

Service

After the divorce petition has been filed, the court first requires an advance payment for court fees to be made. After this has been received by the court, the court serves the divorce petition on the other party, who is given the opportunity to comment on it.

In Germany, service is effected by registered letter. Service by e-mail is not possible. If the respondent lives abroad, the applicable rules for service depend on the country (eg, whether the service takes place in a member state of the EU or not). The timeframe of service also depends on the country, and may take several months.

Treatment of Religious Marriages and Divorces

Under German law, a marriage can only be validly concluded before the registry office. A religious wedding is not sufficient to establish the civil law consequences of a marriage. The same applies for divorcees, which require a court decision.

Whether foreign religious marriages or divorces are recognised in Germany depends on the individual case. When recognising a religious marriage, the nationality of the spouses must be taken into account, as well as other circumstances (whether the marriage was concluded in Germany or abroad, whether the “marriage” was celebrated before a person properly authorised by the foreign government, whether formal requirements of the applicable foreign law have been met, etc). If a divorce has been carried out by a religious authority abroad, its recognition in Germany generally depends on the qualification of the foreign decision (for example, whether a decision by a religious court abroad has direct effect in that country). In any case, the recognition of a foreign religious marriage and/or divorce is excluded if it would lead to a result that is obviously incompatible with significant principles of German law, particularly fundamental rights (so-called ordre public).

Other Processes in Relation to Ending a Marriage

Apart from divorce, a marriage may be dissolved through annulment by judicial decision. The grounds of annulment are very strict – eg, if a spouse was induced to enter into the marriage by deceit or threat (Section 1313 of the BGB) – so the chances of annulment are very low.

There are no formal separation proceedings in Germany.

Jurisdictional Grounds

Jurisdiction is based primarily on the grounds of Council Regulation (EU) No 2019/1111 of 25 June 2019 (Brussels IIb Regulation (recast)), which has been applicable in all EU member states except the Kingdom of Denmark since 1 August 2022. According to Article 3 of this Regulation, Germany, as a member state, has jurisdiction for divorce proceedings if:

• the spouses are habitually resident in Germany;
• the spouses were last habitually resident in Germany, if one of them still resides there;
• the respondent is habitually resident in Germany;
• in the event of a joint application, either of the spouses is habitually resident in Germany;
• the applicant is habitually resident in Germany and resided there for at least one year immediately before the application was made;
• the applicant was habitually resident in Germany for at least six months immediately before the application was made and is a German national; or
• both spouses are of German nationality.

If no court of an EU member state has jurisdiction according to the Brussels IIb Regulation, German law determines jurisdiction: conforming to Section 98 of the Family Procedure Act (FamFG), a German court has jurisdiction if one of the spouses is of German nationality. It is disputed whether the Brussels IIb Regulation also applies to same-sex spouses.

Concepts of Habitual Residence and Nationality

Within the Brussels IIb Regulation, jurisdiction is primarily governed by the principles of habitual residence and nationality. However, the Brussels IIb Regulation itself does not define “habitual residence”. The courts have to determine the habitual residence within the meaning of the Regulation, considering the individual circumstances. In general, the habitual residence is understood to mean the permanent and usual centre of a person’s life. This is determined according to the following criteria.

• Where is the person permanently or predominantly present?
• Where is the person integrated into family and social life?
• Is there an intention to return to the previous country?

The European Court of Justice has clarified that a person can have only one habitual residence.

In contrast to habitual residence, the nationality of a spouse is easier to examine. Nationality is determined by the law of the country concerned and does not have to be determined autonomously by the court.

Challenging Jurisdiction

A party to divorce proceedings can contest jurisdiction if the court seised has no jurisdiction according to the rules mentioned above. The court has to examine its jurisdiction ex officio. According to Article 20 of the Brussels IIb Regulation, a German family court shall stay the proceedings if divorce proceedings were brought before the court of a member state first. In matrimonial matters, the spouses cannot agree on the place of jurisdiction under the Brussels IIb Regulation.

Jurisdictional Grounds

From a German perspective, jurisdiction in matters of the matrimonial property regime is determined by Council Regulation (EU) 2016/1103 of 24 June 2016, which applies to proceedings initiated on or after 29 January 2019. According to this Regulation, Germany, as a member state, has primary jurisdiction for divorce proceedings in the following circumstances:

• if a German court is seised to rule on an application for divorce (Article 5 (1));
• if a court is seised to rule on an application for divorce and the spouses agree on the court’s jurisdiction under the specific conditions (Article 5 (2)); or
• in the case that there are no divorce proceedings pending at a court of a member state (Article 6) and the spouses did not agree on a jurisdiction based on Article 7:
1. if both spouses are habitually resident in Germany at the time the court is seised or, failing that:
2. if the spouses were last habitually resident in Germany, insofar as one spouse still resides in Germany at the time the court is seised or, failing that:
3. if the respondent is habitually resident in Germany at the time the court is seised or, failing that:
4. if the spouses have common German nationality at the time the court is seised.

Challenging Jurisdiction

A party to financial proceedings can contest jurisdiction. Within Council Regulation (EU) 2016/1103, jurisdiction may be established based on the appearance of the defendant if the defendant does not contest the jurisdiction (Article 8).

The court has to examine its jurisdiction ex officio. According to Article 17 of Council Regulation (EU) 2016/1103, a family court shall stay the proceedings if financial proceedings were brought before the court of another member state first.

Financial Claims After Foreign Divorce

If a German court has jurisdiction, it hears financial claims after a foreign divorce as long as there is no prior decision nor agreement on a financial claim that must be recognised in Germany.

Service

After the petition for financial proceedings has been filed, the court usually requires an advance payment for court fees to be made. After this payment, the court serves the petition on the other party, who is given the opportunity to comment on the petition.

In Germany, service is effected by registered letter. Service by e-mail is not possible. If the other party lives abroad, the applicable rules for service depend on the country (eg, whether the service takes place in a member state of the EU or not). The timeframe of service also depends on the country, and may take several months.

Process and Timeline

There is no predictable timeframe for financial proceedings. In particular, financial proceedings can take a long time if a claim for disclosure is first asserted (especially if this claim has to be enforced abroad) or if assets have to be evaluated by an expert (eg, companies, real estate).

Petition for Division of Assets

The family court will not address the division of assets upon divorce (eg, claims concerning the matrimonial regime or other financial claims) unless one of the spouses files a motion. In this case, the court needs to decide within the divorce proceedings. Besides this, the only decision the family court has to give ex officio upon divorce is the division of pension rights acquired during the marriage.

Financial Orders

German law distinguishes between the individual consequences of divorce. This means that proceedings must be conducted separately, and the jurisdiction as well as the applicable law must be assessed separately. Regarding assets, the court can decide in separate proceedings on the matrimonial property regime, the division of a specific item of property jointly owned by the spouses, and the separation of household items and the matrimonial home.

The German court cannot, on its own initiative, divide joint property – eg, change the ownership structure of an object by court order. Termination of the statutory matrimonial property regime under German law (Zugewinnausgleich/claim for equalisation of accrued gains) leads to a claim for payment but has no fundamental effect on the ownership structure. Only in exceptional cases can a spouse request from the court that a specific property item from the other spouse’s assets be transferred to him/her, to be offset against the equalisation of accrued gains claim.

Information on Assets

If a spouse has filed for divorce or the legal property regime has ended otherwise (eg, by agreement), each spouse has a claim for disclosure against the other spouse regarding the assets at specific dates that are relevant for the calculation of the claim for equalisation of the accrued gains – eg, the assets as of the date of marriage, the date of separation and the date of service of the divorce petition (Section 1379 of the BGB). This claim for disclosure can be made within proceedings. The court can order the respondent to give the requested information and documentation. Such an order can be enforced by imposing a penalty payment. The enforcement requires an application. However, a penalty payment is hard to enforce if the respondent lives abroad, and this takes time. With regards to assets, the German court cannot make orders for disclosure against third parties.

Property Regimes

German law recognises four different matrimonial property regimes.

• By default, spouses obtain the community of accrued gains (Zugewinngemeinschaft). The spouses’ respective assets belonging to each spouse remain separate property. Correspondingly, neither spouse is liable for liabilities incurred solely by the other spouse prior to the marriage, nor for obligations entered into by that spouse individually thereafter. In the case of divorce, the gains accrued during the marriage are equalised according to Sections 1373–1390 of the BGB. Accrued gains are the amount by which the final assets of a spouse (ie, the assets that belong to a spouse on the date of service of the divorce petition) exceed the initial assets (ie, the assets that belong to a spouse at the date of the marriage). If the accrued gains of one spouse exceed the accrued gains of the other spouse, then half of the difference in the respective gains can be claimed as an equalisation. This equalisation is a payment claim.
• In a (pre)nuptial agreement, the spouses can choose:
1. a separation of property (Gütertrennung);
2. a community of property (Gütergemeinschaft); or
3. a special community of accrued gains between Germany and France (Wahl-Zugewinngemeinschaft).

Concept of Trusts

The common law trust concept is unknown in German law.

Under German law, a distinction is made between spousal maintenance during separation, which is granted from the date of separation until the divorce becomes legally binding, and post-divorce spousal maintenance – ie, maintenance for the period after the divorce.

Spousal Maintenance During Separation

Separation maintenance is regulated by law in Section 1361 of the BGB. It serves not only to facilitate the transition to financial independence for the spouse, but also to maintain the marital standard of living for the lesser-earning spouse for a certain transition period.

The amount of maintenance is usually determined according to the principle of equal sharing. This means that both spouses’ net incomes relevant to maintenance are calculated (ie, gross income minus taxes, pension and health insurance contributions, and marriage-related expenses such as mortgage payments on a jointly owned property). The difference between the spouses’ net incomes is then calculated, and the spouse entitled to maintenance would normally receive 45% of this difference. In the case of high incomes, a specific calculation of needs is made, as in these cases it is assumed that not the entire income was used to cover living expenses.

Separation maintenance is generally payable until the divorce becomes legally binding. However, after the first year of separation has expired, changes must be taken into account, in particular the renewed full obligation to earn a living on the part of the spouse who has not been in full-time employment up to that point, provided that there are no impediments such as childcare or illness.

Post-Divorce Spousal Maintenance

As a general rule, following the finalisation of the divorce, the principle of personal responsibility applies. Maintenance is only payable if one of the legal grounds for maintenance set out in Sections 1570 et seq of the BGB applies. These grounds include care for common children, illness, unemployment, the need for vocational training and supplemental maintenance.

If a ground for maintenance is established, the amount of maintenance is usually also determined according to the principle of equal sharing.

There are no fixed statutory time limits for the duration of post-divorce maintenance; the length of the obligation depends on the individual circumstances of each case. Particular consideration is given to marital disadvantages and aspects of post-marital solidarity, with the duration of the marriage also playing a role.

It is important to note, however, that spousal maintenance at the level of the marital standard of living is generally only owed for a transitional period following the divorce. This transitional period is intended to enable the economically weaker spouse to adjust to the new living circumstances. Beyond this phase, maintenance is only payable in an amount sufficient to compensate for specific disadvantages caused by the marriage – such as impaired career development or reduced earning capacity – unless another statutory ground for ongoing maintenance applies.

Procedural Law

Neither spousal maintenance during separation nor post-divorce spousal maintenance are automatically included in the divorce proceedings. Post-divorce spousal maintenance may, upon application, be dealt with within the divorce proceedings as a matter joined to the divorce. Spousal maintenance during separation, by contrast, must be pursued in separate proceedings independent of the divorce. In such cases, maintenance may be secured on an interim basis by way of an interim order, which likewise requires an application and that the claim be made plausible on a prima facie level.

German courts usually order monthly maintenance payments. A lump sum payment may be imposed only in exceptional cases and if there is an important reason and the obligated party is not unreasonably burdened.

In Germany, both prenuptial and postnuptial agreements are generally recognised. Spouses are free to regulate the financial consequences of marriage and divorce by agreement, particularly with respect to matrimonial property regimes, spousal maintenance and pension equalisation. It is also possible to regulate financial claims relating to children. However, it is not permissible to waive child support or separation maintenance for the future.

Formal Requirements

Nuptial agreements can be concluded at any time – ie, before, during or after a marriage. In order to give effect to the agreement, a prenuptial agreement must be certified by a notary in the presence of both parties. Postnuptial agreements must be either notarised or recorded by the court in order to give effect to the agreement if it is concluded while divorce proceedings are pending. If the agreement is concluded after the divorce is legally binding (eg, concerning post-marital maintenance), a notarisation or recording by the court is no longer necessary. The choice of a matrimonial property regime always needs to be notarised.

Judicial Review of Content

In principle, spouses may enter into mutual agreements regarding the legal consequences of marriage and divorce that deviate from the statutory provisions. However, this power of disposition is subject to certain limits. In particular, it must not lead to the protective purpose of the statutory provisions being arbitrarily undermined by contractual agreements. This would be the case, for example, if the agreement resulted in a unilateral distribution of burdens that was not justified by the circumstances of the marriage and would be unreasonable for one of the spouses. A German court reviews this within the framework of a judicial review of the content when it is called upon to do so.

In 2004, the Federal Court of Justice developed a kind of gradation with regard to the possibility of contractually modifying the legal consequences of divorce through its so-called core area doctrine (Kernbereichslehre), which is still in force today. According to this core area doctrine, the more directly the contractual waiver of legal provisions interferes with the core area of divorce law, the greater the burden on one spouse. According to this doctrine, there is little scope for contractual provisions deviating from the statutory consequences of divorce in the case of maintenance for childcare. The next level includes further maintenance provisions for post-divorce maintenance and pension rights equalisation as anticipated old-age maintenance. Matrimonial property law does not belong to the core area of the consequences of divorce and is therefore most amenable to contractual arrangements.

Judicial precedent has developed a two-step assessment. First, the court examines whether the agreement was manifestly unconscionable at the time it was concluded (effectiveness review – so-called Wirksamkeitskontrolle), taking into account objective as well as subjective factors, such as pregnancy or economic dependence. Secondly, even if the agreement was originally valid and binding, the court may adjust the agreement if its application at the time of divorce would lead to an unreasonable result due to changed circumstances (exercise review – so-called Ausübungskontrolle).

The applicable law concerning spouses does not extend to cohabitants. Claims can only be made against each other on the general grounds of German civil law. There are no specific rules for cohabitants, so life partners do not automatically acquire rights based on the duration of their cohabitation.

However, if a child is born to a cohabiting couple and the mother cannot be expected to work due to caring for or raising the child, the father is obliged to pay maintenance to the mother, in addition to his maintenance obligation towards the child. The maintenance obligation begins four months before the birth at the earliest, and continues for at least three years after the birth. It can be extended for as long as and to the extent that this is equitable.

Partners in a non-marital partnership also have the option of regulating their relationship through a cohabitation agreement.

Court decisions dealing with matrimonial property arrangements and/or maintenance payments are enforced in Germany in the same manner as ordinary monetary claims, by way of formal enforcement proceedings pursuant to Section 120 of the FamFG in conjunction with Sections 704 et seq of the Code of Civil Procedure (ZPO), if a party fails to comply with them. As a rule, the creditor must obtain an enforceable title, such as a provisionally enforceable or final decision of the Family Court. Other enforceable titles also exist – eg, a certificate issued by the Youth Welfare Office for child maintenance or a notarised deed. The enforceable title must have been served on the debtor.

Once these requirements are met, enforcement may take various forms. Common methods include the garnishment of wages and salaries, the attachment of bank accounts, the seizure of assets, and the registration of enforcement measures against real estate property.

Recognition and Enforcement of Foreign Financial Orders

The procedure for enforcing foreign court decisions in Germany depends on whether the judgment originates from an EU member state or a non-EU member state.

Recognition and enforcement of EU judgments

For decisions from EU member states, enforcement is significantly simplified due to EU regulations, particularly the EU Matrimonial Property Regulation and the EU Maintenance Regulation. These instruments generally abolish the need for a formal recognition (exequatur) procedure. An enforceable judgment issued in one EU member state can be enforced directly in Germany upon presentation of the required certificate.

Exequatur for non-EU judgments

In contrast, decisions from non-EU countries are subject to national law and international treaties. In principle, a foreign financial order must first be formally recognised by a German court before enforcement is possible. Recognition depends on conditions such as the jurisdiction of the foreign court, proper service of process, and compatibility with German public policy (ordre public). If an applicable international agreement such as the Hague Maintenance Convention or the Lugano Convention exists, enforcement may be facilitated.

According to Section 170 of the Courts Constitution Act (GVG), proceedings and hearings in family matters are not public. In exceptional cases, the court may allow other persons to attend a hearing, but this is usually only possible if both parties agree. Such permission may be granted, for example, to trainee solicitors or other persons undergoing training.

The media and press do not have access to these non-public Family Court proceedings.

Court decisions in Germany are not published as a matter of course. Accordingly, courts or the judges themselves generally decide whether to publish a decision or to forward it for publication to publishers or other third parties. If a decision is published, it must generally be done so in an anonymised form in order to ensure data protection and safeguard the personal rights of those involved.

The competent court is obliged at every stage of the proceedings to attempt to reach an agreement before delivering its judgment. It may refer the parties to out-of-court dispute resolution measures for this purpose. The judge also has the option of referring the matter to a trained mediation judge, with the consent of the parties involved. However, a refusal to participate in such measures does not lead to direct sanctions. A lack of effort to reach an agreement may have indirect effects – eg, on the decision on costs.

If an agreement is reached out of court, it has the legal character of a civil law contract. Such agreements are often notarised or recorded as a court settlement, which makes them enforceable.

Jurisdiction is based primarily on the grounds of Council Regulation (EU) No 2019/1111 of 25 June 2019 (Brussels IIb Regulation (recast)), which has been applicable in all EU member states except the Kingdom of Denmark since 1 August 2022. According to Article 7 of this Regulation, Germany, as a member state, has jurisdiction in matters of parental responsibility if the minor child has his/her habitual residence in Germany at the time the court is seised. This applies regardless of whether the child or the parents hold the nationality of an EU member state bound by the Brussels IIb Regulation or of a third country.

If, according to the Brussels IIb Regulation, international jurisdiction cannot be established for a German court, international jurisdiction may arise from Articles 5 et seq of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996 Hague Convention), provided that the child has his/her habitual residence in a contracting state of the 1996 Hague Convention that is not bound by the Brussels IIb Regulation.

If jurisdiction also cannot be established under the Convention concerning the powers of authorities and the law applicable in respect of the protection of infants (1961 Hague Convention), and the minor child has his or her habitual residence in a third country that is neither bound by the Brussels IIb Regulation nor a contracting state to the 1996 or 1961 Hague Conventions, German autonomous conflict-of-law rules apply.

International jurisdiction in proceedings concerning parental responsibility or access is governed by Section 99 of the FamFG. According to this provision, German courts have international jurisdiction if the child:

• is a German national;
• has his or her habitual residence in Germany; or
• requires the care of a German court.

However, it should always be noted that, in accordance with Section 97 of the FamFG, EU regulations and provisions of international treaties take precedence over the provisions of the FamFG, as outlined above.

When married or unmarried couples separate, joint parental responsibility continues even after separation and, in the case of married couples, after divorce. However, joint parental responsibility does not automatically arise between unmarried parents; it requires either a joint declaration by the parents or a court decision. Once established, joint parental responsibility remains unchanged under German law. A court procedure is only necessary if one parent applies for sole parental responsibility.

Family Court Decisions on Child’s Living Arrangements or Access

If the parents cannot agree on the child’s living arrangements or access, either parent may file an application with the Family Court, which examines the case based on the child’s best interests (Section 1697a of the BGB). Factors taken into account are:

• continuity (geographical and personal);
• tolerance regarding a good relationship between the child and the other parent;
• parenting skills and the ability to promote the child’s personal skills; and
• the child’s will.

As part of the proceedings, the Youth Welfare Office (Jugendamt) prepares a report, and the court appoints a guardian ad litem, who acts as the child’s representative and explores solutions that are in the child’s best interests. The court may also consult experts, if necessary. Finally, the judge must hear the child (irrespective of the child’s age) before making a decision, giving appropriate weight to the child’s age and maturity.

Overall, the court can only make decisions regarding a child’s living arrangements or access with due regard to the child’s best interests, and may not intervene in the child’s upbringing if there is no risk to the child’s welfare or no application from the parents.

Relocation

If one parent wishes to move away with the child in a situation of joint parental responsibility, and if they cannot reach an agreement with the other parent, the court must decide. In doing so, the court will examine solely whether it is in the child’s best interests to live with the parent who is remaining behind or with the parent who is moving away. As a result, the court will transfer the authority to decide on the child’s habitual residence to one parent as part of their parental responsibility.

Child Maintenance

Under German law, only the minimum needs of a child are expressly defined by statute (Section 1612a of the BGB). These minimum needs are based on the minimum subsistence level for tax purposes, which is determined every two years by the Federal Government in its report on the subsistence minimum. The child’s needs increase with age.

The statutory minimum needs of a child form the starting point for the so-called Düsseldorfer Tabelle. Although it is not legally binding, the Düsseldorfer Tabelle is widely and consistently applied throughout Germany and serves as the central practical reference for calculating child maintenance. It divides the net income of the maintenance-obliged parent into 15 income groups and provides guidance for children over the age of 18 who are still living with their parents.

Calculation of Child Maintenance

In principle, both parents are responsible for child maintenance. If the child is a minor, the parent with whom the child primarily lives usually fulfils his/her maintenance obligation through care and upbringing, while the other parent must provide financial maintenance. The amount payable is calculated based on the paying parent’s adjusted net income or the living standard of the parents. After considering half of the child benefit (Kindergeld), the final amount is determined. In high net worth cases, the maintenance is calculated according to the individual need of the child. However, according to the Supreme Court’s case law, children should not participate in their parents’ luxury.

Once the child is of age, both parents are generally required to contribute financially.

Agreements, Court Orders and Duration of Child Maintenance

Parents can generally agree on child maintenance arrangements without court involvement, including the amount and payment terms. Such agreements may be formalised either by obtaining a child support certificate (Jugendamtsurkunde) from the Youth Welfare Office or by having the agreement notarised, both of which make the obligation enforceable. If no agreement is reached, the court may issue child maintenance orders.

A distinction must be made between interim and final decisions, as this determines their duration. Interim maintenance orders may be issued, for example, to secure the child’s ongoing living needs. These orders are time-limited and apply only until a decision is made in the main proceedings or until they are revoked or amended; they do not have permanent binding effect. By contrast, final maintenance orders are not subject to a fixed time limit: they remain in force as long as the child is in need of maintenance and the statutory requirements are met.

Maintenance decisions may be modified if there is a substantial change in circumstances, such as changes in a parent’s income, a change in the care arrangement, or the child reaching the age of majority. In principle, the obligation to provide child maintenance continues until the completion of an appropriate education. However, once the child is of age, the legal basis of the claim and the parents’ respective shares of liability change.

In child maintenance proceedings, proper representation of minor children is required. If one parent exercises sole parental custody or has been granted decision-making authority by the Family Court, that parent represents the child alone. In many cases, however, separated parents share parental custody. In such situations, the parent with whom the child primarily resides represents the child when asserting maintenance claims against the other parent. Once the child reaches the age of majority, the child must assert the maintenance claim independently.

If parents cannot agree on specific aspects of the child’s upbringing, such as education, religious issues, medical treatment or holiday arrangements, each parent may apply to the Family Court. The court has the authority to make a binding decision on the disputed issue, provided this is necessary to safeguard the child’s best interests. However, the court will generally limit its intervention to the specific matter in dispute and will not issue comprehensive orders on the child’s upbringing unless the child’s welfare is at risk.

Before making a decision, the judge must hear the child (irrespective of the child’s age) in order to gain a personal impression of the child and to better assess the child’s wishes, needs and level of maturity. The older and more mature the child is, the greater the weight that must be attached to the child’s expressed wishes. However, the court must carefully examine the reasons underlying those wishes and assess whether they are stable or subject to potential change. Accordingly, the child’s views cannot be adopted automatically. Schematic or formulaic solutions are impermissible – rather, each case requires an individualised assessment of all relevant circumstances.

Parental Alienation

There is no legal definition of parental alienation in German law. Such cases, however, present particular challenges and can be relevant in both custody and access proceedings.

In custody matters, the child’s best interests remain the guiding principle, as custody decisions are not intended to sanction parental behaviour. In its decision dated 17 November 2023, the Federal Constitutional Court (Bundesverfassungsgericht) addressed Parental Alienation Syndrome (PAS), stating that it is an “outdated and scientifically refuted concept” and cannot serve as a reliable basis for judicial decisions (1 BvR 1076/23).

With regard to access, a child may sometimes refuse contact with one parent in order to avoid conflicts between the parents. Ignoring or overriding the child’s expressed will in such cases could itself pose a risk to the child’s welfare. Whether in an individual case the disadvantages associated with potential parental alienation outweigh the risk arising from the restriction of the child’s autonomy can be evaluated through a specialised expert if the court is unable to assess it directly.

Mediation

Mediation is a central tool in resolving child law matters. A neutral mediator helps parents to develop mutually agreed solutions on issues such as custody, visitation and child support. The parties retain control over decisions, and conflicts can often be resolved more quickly and with less stress than in court. Mediation itself, however, cannot be ordered by the Family Court, and participation is voluntary.

Role of the Youth Welfare Office

The Youth Welfare Office (Jugendamt) plays an important role, especially when minor children are involved. It can act as a contact point, provide information on parental rights and obligations, facilitate discussions and make proposals in the child’s best interests. Furthermore, is it always a party to proceedings in child-related proceedings by law.

Family Counselling Centres

Organisations such as Caritas and Diakonie or municipal counselling centres offer guidance to help parents resolve disputes outside of court.

Legal Framework

Section 156 of the FamFG requires courts to inform parties about counselling services provided by Child and Youth Welfare Agencies, with the aim of developing a mutually agreeable plan for parental custody and responsibility. Courts may also inform parties about the availability of mediation.

While courts can recommend or require participation in counselling, such participation cannot be enforced. Counselling is effective only if parents engage willingly – participation under compulsion or for strategic reasons is unlikely to succeed.

Legal Effect of Out-of-Court Agreements

Agreements reached outside of court carry the legal status of a civil law contract. They are often notarised or recorded as a court settlement. However, even court-approved settlements can only be enforced if the court has first heard the child and approved the settlement.

According to Section 170 of the GVG, proceedings and hearings in family matters are not public. Media representatives are not permitted to attend, and any published judgments are anonymised to protect the identities of the parents and children involved.