Divorce

What do I need to know?

If you are contemplating divorce, there are many laws and regulations you need to consider. A divorce entails a complicated legal process in Germany- which means there are crucial points to consider and various issues to work out before the official divorce. Here you will find everything you need to know about the divorce process in Germany.

Essential questions about divorce

When can I get a divorce?

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When a person assumes his/her marriage has ultimately failed, he or she may think of divorce. To prevent couples from prematurely ending their marriage, in Germany, there is a so-called "year of separation" ("Trennungsjahr") couples need to go through before the official divorce; i.e. you cannot be divorced until you live separately from your spouse for at least one year.

However, there are exceptions to this general rule:

If you cannot be expected to wait for a year, your divorce may take place faster. You may be exempt from spending a year of separation, e.g. if your spouse was frequently and certifiably violent against you, or if you or your partner has been in an extramarital relationship for months, or when one of you is expecting a child from an extramarital relationship.
If your partner does not agree to a divorce and presents valid reasons why your marriage has not ultimately failed, you need to live separately for three (instead of just one) years before you can officially get a divorce.

You need to prove that you have actually been living separately for one (or three) year(s). The year of separation begins immediately after the couple separate economically and physically, i.e. when your bank accounts are not joint anymore and you no longer live in the same apartment. If moving out is not possible and you still have to live together during the year of separation, you must have separate bedrooms and live independently from each other. If your partner does not agree with the separation, it is recommended to send him a registered letter ("Einschreiben") declaring your decision for divorce and to keep the postal receipt.

Important: You can submit the divorce application shortly before the end of the year(s) of separation, as it usually takes a few months before the court issues a divorce decree.

How can I apply for a divorce?

What costs should I expect?

What issues do I need to settle for a divorce?

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If you have not entered into a prenuptial agreement (“Ehevertrag”), the assets generated during the marriage will be divided between the partners in the event of a divorce. This rule is called "property equalisation" rule ("Vermögensausgleich" or "Zugewinnausgleich"). However, it does not apply to the assets which a spouse owned prior to the marriage. If you have agreed in a prenuptial agreement that your entire property belongs to both spouses ("Gütergemeinschaft"), everything will be divided between you and your partner. In case you have both indicated in your prenuptial agreement that the assets generated during the marriage will not be shared ("Gütertrennung"), then both partners keep their property and nothing needs to be divided.
Do your best to come to a mutual agreement about the ownership of the assets with your spouse outside the court. If a mutual agreement is not possible, your lawyer can help you to file a claim for property equalisation at the Family Court- keep in mind that filing such a claim will increase the service fees you are required to pay to your lawyer and the court.
In case of a divorce (and also during the year(s) of separation), usually, one of the spouses is obliged to pay maintenance. In other words, if you are unable to provide for yourself, your spouse is obliged to support you financially. This obligation applies to your spouse when you cannot earn a living due to childcare, old age, health conditions, unemployment or if you are in vocational training. In these cases, your spouse is also obliged to provide financial support for the children you have together, if they live with you. The amount of maintenance payment you receive from your former spouse depends on the financial conditions during the marriage. However, it is important to keep in mind that your spouse needs to earn enough and support himself as well. According to family law, you cannot demand financial support from your spouse when he does not earn enough money. In case your spouse is not able to support you while you have little to no income, you can receive state benefits. If possible, come to a mutual agreement about maintenance payments outside the court. If this is not possible, you can file a court order with the help of your lawyer. Involving the lawyer and the court, however, will increase your legal costs.
If you have children together, you need to clarify with whom the children will live in the future and whether you will share their custody or not. If only one of the parents takes on the children's custody, he or she will be solely responsible for the children's upbringing. The parent who has the custody decides, for instance, which kindergarten or school the children go to, with whom they interact and where they live. According to the “Parental visiting rights” ("Umgangsrecht"), the parent who does not have the right of custody is entitled to see his children regularly. You and your spouse can reach a mutual agreement on these issues outside the court. Only if you fail to come to an agreement, will the court intervene and decide about custody and visiting rights. In this case, the main priority is always the wellbeing of the children. Try your best to reach an agreement on child custody and visiting rights. If you cannot agree, you can file a claim in the court with the help of your lawyer. Involving the lawyer in the conflict, however, will increase your legal fees.
After the divorce, a so-called "pension sharing" rule ("Versorgumgsausgleich") applies to the couples' pension entitlement. In principle, the longer you have worked and the more you have earned, the higher the amount of pension you will receive. In a marriage, however, often one spouse stays at home, for instance, to care for the children. So, he or she will be entitled to a lower pension compared to the other person. In the case of a divorce, the person with the more substantial pension entitlement must hand over part of his pension rights to his/her partner. During the divorce process, the Family Court decides what portion of a person’s pension rights must be transferred to the spouse.

Important: If you and your partner disagree on your rights and obligations after divorce, you can try mediation before taking matters to the Family Court. Mediation can save you a great deal of time and money. Mediation means you and your partner try to find a solution to all disputed issues regarding childcare, custody, etc., with the help of a consultant. You can negotiate and agree on everything- however, the court is the only authority which calculates and decides the portion of pension rights to be shared. Here you can search for a divorce mediation service in your district.

What is the divorce process like?

Can I lose my residence permit because of a divorce?

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If you have obtained your residence permit due to your marriage, you may lose your right of residence after the divorce. If you have come to Germany through family reunification and have not applied for family asylum, your residence permit depends on the continuation of your marriage. That is also the case when your marriage is the only reason you have been issued a residence permit in Germany. The decisive factor here is the length of your marriage: If you have been married for more than three years, your residence permit will be renewed for another year after the divorce. After one year, you can apply for the right of residence in Germany independently. If you have been married for less than three years, your residence permit will usually not be extended and is often even shortened if you separate from your spouse. In other words, the Immigration Office can ask you to leave Germany after the official divorce. However, you can file a lawsuit against the shortening of your original residence permit. To do so, you need to hire a lawyer. To find a lawyer in your area who specialises in advising refugees, you can check websites like www.rechtsberaterkonferenz.de.

In certain circumstances, your residence permit will be renewed even after less than three years of marriage:

If you have a child with your partner, share custody, have regular contact with the child and, (ideally) financially provide for the child, your residence permit is usually extended despite the divorce.
If you terminate the marriage because your partner has been repeatedly and certifiably using violence against you, your residence permit will usually be extended. Any existing criminal charges against your partner or a statement from a women's shelter you had to move to are considered to be valid pieces of evidence in this case.
When the revocation of your residence permit means that you must return to a country in which you are in danger, in principle, your residence permit will be extended.
In some cases, it is also possible to extend the residence permit after the divorce if you are a skilled worker or a vocational trainee ("Ausbildung"). For more advice visit a counselling centre or a lawyer. At www.rechtsberaterkonferenz.de you can find lawyers who specialise in the legal issues related to refugees and asylum seekers. Alternatively, you can seek advice from PRO ASYL.

What other consequences might a divorce have?

What is an annulment of marriage ("Aufhebung der Ehe")?

Important

Before you get a divorce, you can try to resolve your problems in marriage counselling sessions. Marriage counselling, however, usually costs about €70 to €100 per session and you have to cover the costs personally.