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April 2005

Untying the Knot

What to do when all else fails...

If you’ve been following the last two “Red Tape” columns, you may find the subject of this month’s text a little cynical. However, as between a third and one half of all marriages end in divorce, the topics are related in many people’s minds. So, if you have divorce on your mind, this month’s “Red Tape” is for you. One proviso before we get down to the details: as with many legal transactions, there are plenty of exceptions to the rules. This text is not a step-by-step guide to divorce (Scheidung) in Germany, but rather a list of useful information.

The first question potential divorcees reading this article will be asking themselves is whether they—most likely foreign nationals—can get divorced in Germany. According to the law, German courts have jurisdiction over matrimonial matters when one partner is a German national or, in the case when both are foreign nationals, if they both habitually reside in Germany. This does not necessarily mean that the abovementioned must get divorced in Germany, but only that they can. Couples of mixed EU nationalities, e.g. German wife and British husband, should also apply (beantragen) for a divorce in the country where they habitually reside, even if that is a third country, such as France.

The only grounds for divorce (Scheidungsgrund) in Germany is the so-called breakdown of the conjugal relationship (Lebensgemeinschaft der Ehegatten besteht nicht mehr) and the expectation that this relationship cannot be restored. In contrast to, say, Britain, marital faults, such as adultery or desertion, are not grounds for divorce. Instead, the couple must have been separated (getrennt) for one year and both partners must be applying for divorce. The term “separated” in this case means that the husband and wife are no longer living together as a married couple and that one of the partners wishes for this to be so. This does not necessarily preclude the couple sharing a house or an apartment. However, if they are, they may well be asked to prove that their living quarters are indeed separate and that only the bathroom and kitchen are in communal use. If the couple have been separated for three years or more, then, in the eyes of the law, the marriage is deemed irreconcilably broken (unwiderlegbares Scheitern der Ehe) and only one partner need apply for the divorce.

The division of assets (Aufteilung des Vermögens) will depend on any prenuptial agreement (Ehevertrag)—or lack of it. If a couple has made no other legal arrangements, joint ownership of the increase in capital value of assets (Zugewinngemeinschaft) applies. In other words: whatever has been earned, or whatever increase in assets there has been since the marriage, will be equally divided between the two. Also, unless division of property (Gütertrennung) has been agreed upon at some earlier point, community of property (Gütergemeinschaft) automatically applies, meaning that everything must be divided if a couple divorces. Custody of children is generally dealt with in the following way in Germany: divorcing couples will receive joint custody (gemeinsames Sorgerecht) unless one of the spouses applies for sole custody (alleiniges Sorgerecht). German law regards the parental care of both mother and father to be beneficial, so an application for sole custody will need to be well-founded.

Alimony (Unterhaltszahlung) is generally paid in the following circumstances: if a spouse is unable to seek employment due to mental or physical sickness or because he or she must care for children resulting from that relationship; if the spouse, though suitably employed, does not receive enough money to live on and if a spouse is unemployed, but actively seeking employment.

If this sounds horrendously complicated, don’t be disheartened. Nobody is proud of getting a divorce, but German law is generally fair and lawyers helpful and kind. I know; I’ve been there. <<<

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