Divorce

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.

A divorce must be applied for at the Family Court at your place of residence or that of your partner. However, you cannot apply personally, as you are obliged to be represented by a lawyer in the court ("Anwaltzwang"). In other words, you have to hire a lawyer who can submit your application to the court. On this Lawyers Database, you can find a lawyer in your area.

It suffices if one of the partners hires a lawyer to submit the divorce application to the Family Court. The other party will then be informed about the application by the court and can decide whether he or she agrees. It is also possible for both partners to apply for a divorce, but, in this case, they will each need to hire a lawyer.

In a divorce process, the court's and the lawyers' service fees should be covered by the couple. The court fees usually amount to 450- 800 €; i.e. you and your partner each have to pay between € 225 to € 400.

To apply for divorce at the Family Court, you also need a lawyer. In case there are many unresolved issues which you and your partner cannot agree upon outside the court, your lawyer can help you find the best attainable solution for you. If you do not have a lawyer while your partner does, ultimately, the court's decisions may not be in your favour, when it comes to financial issues and custody rights.

A divorce lawyer’s service costs an average of € 1,500 to € 2,000. If there is a dispute between partners, the costs rise accordingly. When choosing a lawyer, make sure that he/she specialises in the subject of family and divorce laws. If your right of residence has been obtained through marriage, it may be helpful to hire a lawyer who is familiar with the topics of residence right and international law.

If you have little or no income, you can apply for state assistance to cover your legal costs ("Verfahrenskostenhilfe"). Your lawyer can help you to apply for it- and if your application is approved, the state will cover the legal fees of your divorce process.

• 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.

The first step is to hire a lawyer who can submit the divorce application to the court. The Family Court reviews your application and sends it to your partner asking for his/her response. At the same time, the court will send you and your partner some forms you must fill out, so that your pension rights will be checked to calculate the amount of pension rights which must be transferred. The calculation process can take up to six months. When everything is resolved, the court will give you an appointment for an official divorce.

You, your spouse, and your lawyer(s) must be present in the Family Court on the designated date. You and your spouse must present your ID cards, passports and (if applicable) family register. If you have married in Germany, you can ask the relevant Civil Registry Office ("Standesamt") for a copy of your family register. The Family Court sessions are not public, which means spectators or guests are not allowed in the courtroom. The court will settle any unresolved problems between you and then formally declare you divorced; i.e. issues you a "divorce decree" ("Scheidungsbeschluss").

The length of your divorce process depends on the duration of your marriage as well as your wealth. In general, if you and your spouse agree on all issues, are neither very wealthy and have not been married for long, at least four to six months can be expected before you can officially dissolve your marriage. If there are disputes over assets, maintenance payments or custody rights, or in case you have been married for a long time, the divorce process may take a year or more.

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.

• You can apply to the Civil Registry Office to assume your old family name; in case you have changed yours after the marriage. You are free, however, to keep the family name of your former spouse.
• Since you are not married anymore, your tax class ("Steuerklasse”) will change.

The annulment of a marriage is not equivalent to a divorce. If annulled, a marriage is terminated by a court order because it was not registered according to the regulations. A marriage may be annulled when:

• it has taken place despite a marriage restriction.
• one of the partners was not legally capable of entering a marriage contract at the time of marriage.
• one of the partners was not of legal age at the time of marriage.
• the marriage is a result of deception or threat.
• the marriage is a so-called "fictitious marriage" ("Scheinehe").