Divorce by mutual consent
A consensual divorce is often used when the dissolution of a marriage is due by a judicial decision ( Section 1564 BGB), but with the special feature that both spouses agree on the divorce and the consequences of the divorce and the application for divorce in court is agreed.
A consensual divorce requires a number of conditions before filing an application for divorce:
There must be agreement that the marriage should be divorced, the year of separation should be adhered to and if the legal matrimonial property regime applies to the marriage, there must be agreement on the equalization of profits and certain other consequences of the divorce (e.g. separation and post-marital maintenance or custody - and access rights for common children) must be clarified. If there is agreement on the divorce itself, but not on all subsequent matters, these can be separated and clarified separately during the ongoing divorce proceedings.
The clarification of these aspects does not have to be recorded in writing and for a consensual divorce it is also not necessary that a written divorce consequences agreement has been or is to be concluded.
With regard to legal representation in divorce proceedings in court, there are also some special features:
Basically, there is a compulsory lawyer before the family court in matrimonial matters and family disputes (Section 114 (1) FamFG).
However, there is an exception to the general legal requirement: for the consent to the divorce, i.e. in the case of divorces by mutual consent, the defendant does not have a legal requirement under Section 114 (4) No. 3 FamFG.
In the case of a mutual divorce, it is not necessary that both spouses are represented by a lawyer. It is sufficient if one party engages a lawyer who files the application for divorce and the other spouse merely consents to it (see Section 114 (4) No. 3 FamFG). In the case of an amicable divorce, only one lawyer is sufficient. As a result, there is a large cost saving, because the costs for the second lawyer are completely eliminated.
The advantages of a consensual divorce for the spouses are the cost savings (in some cases a reduction in the amount in dispute of 25% is assumed) and the divorce proceedings usually take less time.
procedure
Basically, a consensual divorce is like a litigation divorce, but often faster, easier and cheaper. For a consensual divorce, the year of separation should already have ended and the marriage should have finally failed. In addition, the consequences of the divorce should be resolved amicably. It's about a fair solution instead of finding the most assertive lawyer possible.
The agreement regulates the legal consequences of the divorce. The couple agree on the pension equalization. This is about the distribution of pension entitlements from the time of the marriage. The same applies to the profit compensation. Otherwise, the increase in wealth that the couple generated during the marriage is divided in half. The couple must also divide up household items and living quarters. In the case of children together, child maintenance as well as custody and access rights must be clarified. In addition, there may be an entitlement to post-marital maintenance if one of them is needy and the other is productive.
The divorce proceedings begin with the filing of the divorce petition by the lawyer. After the advance payment of the court costs, the court will serve the application on the other spouse. The court then sends forms for the pension adjustment to the couple and the pension fund. If all information is available, the court will determine the date of the divorce. As a rule, the applicant's married couple and lawyer must appear in person on this date. Otherwise nobody takes part because the public is excluded from this date. The court will review the conditions for the divorce. The appointment has a duration of 10–15 minutes. At the end there is the divorce decision. The divorce is final after this decision has been served on both sides at the latest.
Individual evidence
- ^ A b Gabriele Weintz: How an amicable divorce saves time and money. Focus, November 29, 2016, accessed January 2, 2019 .
- ↑ Christian Kieppe: Amicable divorce. In: Christian Kieppe. Lawyer Christian Kieppe, September 6, 2017, accessed on January 2, 2019 .
- ↑ Ludwig Kroiß, Christian Seiler: The new FamFG . 1st edition. Nomos, Baden-Baden 2009, ISBN 978-3-8329-3258-9 , pp. 56 , § 3 Rn. 21 .
- ↑ Sebastian Einbock: Consensual divorce - requirement and duration. In: fachanwalt.de. Einbock GmbH, March 1, 2016, accessed on January 2, 2019 .
