Here is a short introduction into some of the most important things you should know about separation and divorce in Germany.
There is a waiting period of one year
I cannot stand my partner anymore. Can I just separate and file for divorce at once? In 99% of the cases the answer would be “no”. The aim of German law is to make sure that you are serious and that this is not just a spur-of-the-moment decision. It therefore stipulates that there must be a waiting period of one year (Trennungsjahr) between separation and divorce. For example, if you separate on June 12, 2019, and still wish to divorce one year later, on June 12, 2020 you are free to file for divorce in Germany. There are exceptions to this year of separation in radical cases (e.g. if your partner tries to take your life).
You do not have to leave the house to separate (but it helps)
The ideal separation would be for one partner to move out of the marital home. However, this is not always possible for financial or other reasons. German law therefore allows you to start off the separation year by going separate ways within the marital home. Keep in mind that this separation must be as complete as possible. As well as no longer sharing a bed you must not eat together, visit friends together, go on holiday together, do domestic tasks for each other, brush teeth together, etc. The living spaces must be strictly split up. Every marital activity has to be stopped if possible. I once had a judge who stopped the divorce proceedings after the husband admitted during the hearing that he and his wife had just returned from a relaxing 3 week vacation together.
You do not need a valid reason to divorce your partner
German law does not demand a just cause, or any cause for that matter, in order for you to file for divorce. Concerning Divorce and Separation in Germany there is no probing into which party is causing the breakdown of the marriage. A husband can still divorce his wife even if the sole reason for the failed marriage is to be found in his extramarital affairs. The only thing that interests the judge is whether the year of separation has passed. Extramarital affairs might be a problem, though, when it comes to alimony.
Who gets the custody after Divorce and Separation in Germany?
In Germany both father and mother enjoy exactly the same rights. As a rule, this joint custody for married couples continues after separation and divorce. Only rarely is the joint custody removed and sole custody granted to one parent. E.g. in the case of the other parent having severe drug problems. If the parents cannot agree with whom the children should live after the separation the family court must decide this question. It would then transfer the right of habitation (Aufenthaltsbestimmungsrecht) to one of the parents. The right of habitation is only one part of the many custodial rights of a parent. Therefore the other parent is still co-equal decider when it comes to questions of health, education, asset custody, religious upbringing etc.
The parent who does not live with the children has to pay child alimony
When it comes to child alimony German law discerns between the parent in whose household the children live and the other parent who has visitation rights. The ‘household parent’ owes the children habitation, food, etc. The ‘visiting parent’ owes alimony in money in accordance with the ‘Düsseldorfer Tabelle’, which determines the monthly payment on the basis of income and age group:
During the separation you are entitled to alimony
From the moment of separation until the divorce comes into legal effect. As a rule, the weaker party is entitled to separation alimony.
Here is a simplified example (without any reductions of net-income) of how much is owed:
a) Husband has a monthly net income of 4,000 Euros while the wife has no income of her own.
The wife is entitled to 3/7 of her husband’s income, therefore a monthly alimony of approx. 1,714 Euros.
b) Husband has a monthly income of 4,000 Euros while the wife has an income of only 1,000 Euros. The wife is entitled to 3/7 of the income difference of 3,000 Euros, therefore approx. 1,285 Euros.
The costs of a divorce
In Germany the lawyer is usually paid according to the Lawyers’ Fee Statute (RVG=Rechtsanwaltsvergütungsgesetz). The fee and the court costs depend on the income of both parents.
Depending on your income you may be entitled to legal aid (Prozesskostenhilfe/Verfahrenskostenhilfe).
Christopher von Preuschen is an English speaking lawyer /attorney for Family and Labour /Employment Law in Bonn near Cologne/Köln.