Divorce (Germany)

A divorce (short- divorce ) is in the right of Germany , the dissolution of a marriage by court order ( § 1564 BGB).

Essential aspects of divorce are the dissolution of the marriage, the determination of the failure of the marriage and compliance with formal requirements (e.g. year of separation). Depending on the case (and in so far moot) are - if necessary out of court -. Clarification of maintenance , the supply compensation (. Including credit units ), the balance discussion, the division of the household (see FIG. Goods separation , the assessment of income taxes at the time of separation, the double assignment of an apartment and the) To undertake access rights and parental custody for common children.

International jurisdiction

The international jurisdiction is within the European Community with the exception of Denmark with regard to Regulation (EC) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa regulation - also EuGVVO II or EheVO-II ) have been uniformly regulated.

According to Art. 3 Para. 1 lit. a EheVO-II the court of the EC member state in which

both spouses have their habitual residence or last had it, if one of them still has it there;
the respondent has his habitual residence or, in the case of a "joint application", where one of the spouses has his habitual residence;
the applicant has his habitual residence if he has been there for at least 6 months prior to the application and is a citizen of this country or, in the absence of a nationality, has stayed for at least one year;

According to Art. 3 Para. 1 lit. b EheVO-II, the courts of the EC member state whose citizenship both spouses have are internationally competent.

For a German whose spouse is a foreigner, international jurisdiction may mean that no German court has international jurisdiction for his application for divorce.

This international competence is exclusive within the EC. Only non-EC states can also declare their jurisdiction to be an occupation. Residual jurisdiction remains under national law if the respondent is neither a citizen of an EC member state nor has his habitual residence in an EC member state (Art. 6 EheVO-II); German courts have international jurisdiction in this case according to Section 98 FamFG . If the applicant is German and the opponent is neither an EC resident nor resident in the EC, the German jurisdiction is entrusted with the matter.

Maintenance is linked to the divorce as a result of the divorce : Since the entry into force of European law Brussels I - also called EuGVVO - a corresponding regulation has been in place.

If a German court has international jurisdiction, it checks whether it has to apply German law or, in the case of matters affecting foreign countries, foreign law.

Conflict of laws

German courts and authorities always apply German law to German citizens if they live in Germany. Otherwise, the so-called Rome III Regulation has also been in effect here since June 21, 2012, in particular Articles 5 and 8 thereof.

A distinction must be made for foreigners :

If both spouses who want to get a divorce belong to the same foreign country at the time of lis pendens or were they last belonging to it, the divorce was previously based on the law of their home country ( Art. 17 Paragraph 1 EGBGB ). Today, however, Articles 5 and 8 of the so-called Rome III Regulation take precedence (see below).
If one of the spouses is German, if both foreign spouses have different nationalities, or if the spouses are asylum seekers or convention refugees , the law of the place where the spouses have their common habitual residence or where they last had it, if one of them still has it there, applies. Here, too, Articles 5 and 8 of the so-called Rome III Regulation must be observed (see below). However, the German legislature has provided for national privileges: If one of the spouses is German and if the marriage is indivisible according to the law of the last common habitual residence, it will be divorced under German law. If a German is suing for divorce and the German jurisdiction is not competent according to EheVO-II, the German does not benefit from the domestic privilege of Art. 17 (1) sentence 2 EGBGB.

German law is strict on the form of divorce. Even if foreign law is applied to the divorce of the marriage by the German family court , in Germany the marriage can only be divorced by court order (e.g. not by repudiation or annulment contract ). This strictness of form stands in contrast to the tolerance of foreign forms of marriage in Germany (e.g. before a consul or clergy ).

In the European Community, however, now (since June 21, 2012) the “Council Regulation (EU) No. 1259/2010 of December 20, 2010 for the implementation of enhanced cooperation in the area of divorce and separation without dissolution of the marriage bond is in effect applicable law ”, also known as the“ Rome III Regulation ”. If this occurs, a choice of law by the spouses takes precedence. If this has not taken place, a differentiation must be made with regard to the law to be averted towards the divorce. It is important that the regulation also applies to Germans living abroad, even if the divorce proceedings take place in Germany.

Art. 8 of the regulation reads as follows:

“Article 8: Applicable law in the absence of a choice of law

In the absence of a choice of law in accordance with Article 5, divorce and separation without dissolution of the marriage bond are subject to:

a) the law of the state in which the spouses have their habitual residence at the time of the appeal to the court, or otherwise

b) the law of the state in which the spouses last had their habitual residence, provided that this did not end more than a year before the appeal to the court and one of the spouses still has their habitual abode there at the time of the appeal to the court, or otherwise

c) the law of the country of which both spouses are a national at the time of the appeal to the court, or otherwise

d) the law of the state of the court seised. "

Substantive law

German law sees marriage as a lifelong institution which, according to Article 6 of the Basic Law, is placed under the special protection of the state. Marriage can therefore only be ended by death , divorce or annulment . The divorce or the annulment must take place by way of the structural action by judicial decision . The majority of divorces are filed by women.

Divorce was introduced together with civil marriage in the German Reich in 1875 . Until the reform of 1976 ( 1st EheRG ) came into force, the principle of guilt applied in divorce proceedings. It said that the marriage, which was basically lifelong, could only be divorced in exceptional cases, namely in the event of culpable behavior by one of the spouses. The question of guilt essentially determined the regulation of the maintenance rights and obligations of the divorced. In 1976, the legislature abolished the principle of guilt as part of a reform and replaced it with the so-called disruption principle . The text of the law itself speaks of the failure of the marriage union. Maintenance rights and obligations were now largely based on the economic performance of the divorced spouse, taking into account the principle of personal responsibility . The regulations were again comprehensively reformed in 2008 by the law amending maintenance law . However, some of the practical effects of the old guilt principle according to § 1579 No. 7 BGB continue to apply in a very limited form : In the event of unilateral, serious misconduct by one spouse against the other, his guilt can still have an impact on his maintenance claims.

requirements

After having been "outsourced" for decades in the Marriage Act, the requirements for a divorce are now finally regulated again in § 1564 to § 1568 BGB and in § 133 to § 150 FamFG . The consequences of divorce (such as alimony , custody , rights of access and compensation ) are regulated in § § 1569 ff. BGB, the divorce procedure law in the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG). With the implementation of the FamFG, the divorce procedure law, which was previously regulated in the ZPO and the FGG , has now been standardized in one law.

The marriage can be divorced if it has failed ( if it is annulled, there will be no divorce). This is the case if the marital partnership according to § 1353 BGB (mensa et toro) no longer exists and restoration can no longer be expected, for example after an unsuccessful manufacturing lawsuit . The domestic community no longer exists even if the spouses live separately within the marital home (see § 1567 BGB ).

In order to spare the spouse an exact examination of the characteristic failure (disruption), the BGB gives the deciding judge two assumptions ( § 1566 BGB).

If the spouses have been separated for more than a year, the breakdown is presumed if it is regarded as "incurable": If both spouses want to be divorced ("divorce by mutual agreement") or if there is no willingness to reconcile, it is irrefutable from a breakdown to go out.
After three years of separation, the marriage can be divorced against the will of the other spouse. This assumption is also irrefutable.

If the continuation of the marriage is an unreasonable hardship for one of the spouses ( Section 1565 (2) BGB), which lies in the person of the other spouse, the marriage can, however, be divorced before the end of the first year of separation and without the consent of both spouses. Such unreasonable hardship is assumed if there is mistreatment or if the spouse wanted to take another person into the marriage, for example (in the style of a “ ménage à trois ”). In the past, German courts tended to take the term wider and wider and to accept new and subjectively perceived unreasonable hardships.

The beginning of the year of separation can be documented in a legally secure manner by changing to tax class IV in the current year or tax class I in the calendar year following the separation on the tax card . For this purpose, a declaration of marital status must be submitted to the residents' registration office. A change of reporting address with an associated domestic move is also a criterion.

Hardship clause

Section 1568 BGB ('hardship clause') reads as follows:

The marriage should not be divorced, although it has failed if and as long as the maintenance of the marriage is exceptionally necessary in the interest of the minor children resulting from the marriage for special reasons or if and as long as the divorce is due to the defendant who rejects it extraordinary circumstances would represent such severe hardship that the maintenance of the marriage seems advisable, even taking into account the interests of the applicant.

The hardship clause should not be confused with the hardship provision : Section 1565 (2) of the German Civil Code (BGB) exceptionally allows a divorce before completing the year of separation.

Procedure

The divorce proceedings take place before the local court as a family court . Unlike other proceedings before the district court, divorce proceedings require a lawyer . Specifically, this means that at least the applicant must be represented by a lawyer ( Section 114 FamFG).

Consequences of divorce

The consequences of divorce are usually:

Disputes of assets (material goods of the former couple, if necessary allocation according to judgment), see property separation / community of gains
Pension equalization (transfer of pension points to the other person's insurance account)
Loss of spouse splitting (tax law)

The consequences of divorce can include:

Maintenance to balance the standard of living for the future or from moving out of the common apartment due to divorce-related separation
Change of custody of common children
Change of access rights for common children
Change of the previous apartment (allocation by court order), regardless of who is the contracting partner of the apartment owner or his authorized representative
Change of family name

In the divorce proceedings, other family matters (regulation of parental custody, contact , maintenance , claims from matrimonial property law , allocation of marital home and marital household effects ) can be asserted in the event of divorce upon application in a so-called divorce association . As a rule, it is compulsory and without a request from a party to regulate the pension equalization with the divorce .

Some consequences of divorce can be settled out of court; z. B. In the marriage contract , on the occasion of the divorce , you can waive the equalization of profits and, under certain restrictions, the spouse's maintenance. Such agreements are notarized to notarize .

Legal process

While the first-instance hearing always before the District Court held that is appeals body , the Higher Regional Court .

costs

In connection with a divorce, there are costs for legal representation under the RVG and for the court under the FamGKG . In addition, costs for an amicable divorce for a notary to notarising divorce agreement ( § 1408 , § 1410 BGB) or for an expert, such as for determining the value of a property or a company as part of the gain compensation incurred.

For lawyers and courts, the amount of the fees depends on the value of the subject matter or procedure ( § 2 RVG, § 3 FamGKG), for the notary on the business value ( § 3 GNotKG ). In all cases, the value of the procedure or legal activity is meant. The levels for the respective fee amount correspond.

In divorce cases, the procedural value is determined by the assets and income of the spouses. The spouses' net income earned in three months is decisive for the income situation. The total value must not be less than EUR 3,000 or more than EUR 1 million ( Section 121 No. 1 FamFG, Section 43 FamGKG).

Requiring parties may, on application for legal aid is granted ( § 76 FamFG).

The question of whether court and lawyer costs incurred for divorce proceedings are deductible as an extraordinary burden according to Section 33 (2) sentence 4 EStG has been pending appeal proceedings at the Federal Fiscal Court since May 20, 2016 . The Finanzgericht Köln else had replied in the affirmative when the tax office before.

If it can be proven that the spouses cannot pay the divorce costs because their available capital is insufficient, the costs will be covered by the state. This so-called legal aid (§§ 76 to 78 FamFG ), however, applies only to the payment of all attorney fees and court costs. If the divorce is declared, the opponent must bear his own costs (unless he has also applied for legal aid). If the application for divorce is rejected or withdrawn, the applicant must bear these costs ( Section 150 FamFG).

Others

Since 2000, some law firms in the Federal Republic of Germany have been offering a so-called internet divorce ( online divorce ). To date, however, there is no legal possibility of divorce over the Internet. In addition, it should be borne in mind that detailed advice is urgently recommended for such a complex legal area as divorce, which incidentally does not cause any additional costs, since a so-called "Internet decision" is remunerated according to the RVG as well as a decision in person with detailed advice in Law office. Nevertheless, it is possible in this - albeit largely anonymous - way to hire a lawyer to have the divorce proceedings carried out by him at a regular court.

The collaborative law already established in the USA has become known in Germany in recent years as the cocoon procedure . The cocoon procedure is a method for cooperative conflict resolution in the event of divorce and is mainly used in the event of a separation with a child.

On February 3, 2010, the XII. Civil Senate of the Federal Court of Justice decided that donations from the in-laws to the spouse of their child can be reclaimed. These donations were now valued as gifts . If the marriage fails, the business basis for the donation is no longer given. The possibility of at least partial reversal of the donation is also possible if there was a community of gains in the marriage .

History of divorce

In 1783 Joseph II issued a marriage patent in which a clear separation between the church sacrament of marriage and the state marriage contract was defined. Since then, at least non-Catholics have been able to get a mutual divorce and thus remarry.

In the German states, various regulations regarding divorce were in effect until the civil law divorce was introduced in Germany as part of the Kulturkampf .

Divorce in today's sense was introduced with the National Socialist marriage law of the German Reich on August 1, 1938. A dissolution of the marriage was basically possible for all people regardless of denomination. With the First Law on the Reform of Marriage and Family Law of 1976, the principle of guilt that had been in force until then was replaced by the principle of disruption . With effect from July 1, 1998, the marriage law was repealed and the divorce law was integrated into the civil code (BGB) ( § 1564 ff. BGB).

Data and statistics on divorce

The annual number of marriages and divorces in Germany has developed as follows:

Marriages and divorces in Germany
year	marriage closures	marriage decisions	Summarized divorce rates after 25 years of marriage (in%)	Summarized divorce rates after 45 years of marriage (in%)
1990	516,388	154,786	27.4	29.3
1995	430,534	169,425	30.9	33.2
2000	418,550	194,408	37.3	40.3
2005	388.451	201,693	40.4	44.2
2010	382.047	187.027
2015	400.115	163,335	34.7
Source: Federal Institute for Population Research, BiB-Mitteilungen, 04/2007 of February 11, 2008, p. 13

literature

Thomas Rauscher: European Law of Civil Procedure Commentary Volume I and II, 2nd edition. Sellier European Law Publisher, 2006

Web links

Commons : Divorce - collection of pictures, videos and audio files

Federal Statistical Office (Destatis): Statistics on marriages and divorces

Individual evidence

↑ Regulation (EC) No. 2201/2003 of the Council of November 27, 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in proceedings relating to parental responsibility

↑ It is irrelevant whether the law of the Member State whose court has jurisdiction formally allows for a joint application; Thomas Rauscher in European Law of Civil Procedure Commentary on Art. 3 Brussels IIa VO marginal no. 19th

↑ Rauscher in European Law of Civil Procedure Commentary on Art. 3 Brussels IIa VO marginal no. 3

↑ ^a ^b Regulation (EU) No. 1259/2010 of the Council of December 20, 2010 on the implementation of enhanced cooperation in the area of the law applicable to divorce and separation without dissolution of the marriage bond , accessed on March 23, 2017

↑ Art. 12 Geneva Refugee Convention

↑ Hamburger Abendblatt: Tired of marriage?

↑ Peter Borowsky: Social-Liberal Coalition and Internal Reforms - Chapter “Marriage and Family Law”. In: Information on political education (issue 258). Federal Agency for Civic Education, accessed on May 11, 2008 .

↑ As in the Orient? (see cover picture) . In: Der Spiegel . No. 49 , 1970, pp. 70-86 ( Online - Nov. 30, 1970 ).

^ OLG Zweibrücken , November 7, 2008 - 2 UF 102/08

↑ In BGB § 1355 paragraph 5 it says: “The widowed or divorced spouse keeps the married name. By declaring to the registry office, he can accept his maiden name again or the name he used until the married name was determined ... "

↑ Cornelia Jänicke: Divorce Consequences Agreement , accessed on July 26, 2017

^ Peter Veit: Divorce Consequences Agreement , accessed on July 26, 2017

↑ Divorce Costs - How expensive is a divorce? Website of the Professional Association of Legal Journalists, accessed on July 26, 2017

↑ BFH, VI R 9/16

↑ Legal aid in the event of a divorce. Retrieved February 13, 2019 .

^ Cocoon procedure

↑ BGH, judgment of February 3, 2010 , Az. XII ZR 189/06, full text

↑ Press release of the BGH

^ Marriage patent 1783 (Austria) - Wikisource. Retrieved February 17, 2018 .

^ Anne Roerkohl: The culture war in Westphalia. Münster, 1992. In: lwl.org. Internet portal "Westphalian history", accessed on March 23, 2017 (Westphalia in the picture, series: Historical events in Westphalia, issue 6).

^ New divorce law: Pay three times, Der Spiegel , June 27, 1977

↑ http://www.bib-demografie.de/DE/DatenundBefunde/05/Abbildung/a_05_04_ehescheidungszypen_d_w_o_1960_2010.html ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2
↑ ^a ^b https://www.destatis.de/DE/ZahlenFakten/GesellschaftStaat/Bevoelkerung/EhenLebenspartschaftenen/EhenLebenspartektivenen.html
↑ https://www.destatis.de/DE/PresseService/Presse/Pressemitteilungen/2016/07/PD16_249_12631.html
↑ http://www.bib-demografie.de/SiteGlobals/Forms/ sucht/Servicesuche_Formular.html?nn=3071454&resourceId=3075556&input_=3071454&pageLocale=de&templateQueryString=Scheendung&sortOrder=score+desc0 .submit.x=0 &

[1] Regulation (EC) No. 2201/2003 of the Council of November 27, 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in proceedings relating to parental responsibility

[2] It is irrelevant whether the law of the Member State whose court has jurisdiction formally allows for a joint application; Thomas Rauscher in European Law of Civil Procedure Commentary on Art. 3 Brussels IIa VO marginal no. 19th

[3] Rauscher in European Law of Civil Procedure Commentary on Art. 3 Brussels IIa VO marginal no. 3

[RomIII-4] Regulation (EU) No. 1259/2010 of the Council of December 20, 2010 on the implementation of enhanced cooperation in the area of the law applicable to divorce and separation without dissolution of the marriage bond , accessed on March 23, 2017

[5] Art. 12 Geneva Refugee Convention

[6] Hamburger Abendblatt: Tired of marriage?

[7] Peter Borowsky: Social-Liberal Coalition and Internal Reforms - Chapter “Marriage and Family Law”. In: Information on political education (issue 258). Federal Agency for Civic Education, accessed on May 11, 2008 .

[8] As in the Orient? (see cover picture) . In: Der Spiegel . No. 49 , 1970, pp. 70-86 ( Online - Nov. 30, 1970 ).

[9] OLG Zweibrücken , November 7, 2008 - 2 UF 102/08

[10] In BGB § 1355 paragraph 5 it says: “The widowed or divorced spouse keeps the married name. By declaring to the registry office, he can accept his maiden name again or the name he used until the married name was determined ... "