In Germany, a marriage can be divorced if it has failed – the fault or conduct of one of the spouses is no longer relevant (§ 1565 BGB), although the law irrefutably presumes failure if the spouses have been living apart for a year and both spouses apply for divorce or one spouse applies for divorce and the other spouse agrees. If the spouses have been separated for at least three years, further conditions for the presumption of failure are no longer necessary (§ 1566 para. 2 BGB). Divorce proceedings are initiated when one spouse files for divorce; this must be done by a lawyer at the local family court. As soon as the other spouse receives the divorce petition through the court, the marriage is considered to have ended.
Depending on the interests of one of the spouses, an application should be submitted to the court as early as possible or as late as possible. (For the reasons for submitting a petition late or early, see the points on alimony, gain adjustment and pension adjustment).
In divorce proceedings, not only the divorce itself is decided, but also, in principle, the pension settlement, i.e. the equalisation of pension entitlements.
Equalisation of gains (equalisation of assets) and maintenance are only regulated if one of the spouses submits an application for this. Deadlines must be observed here!
A divorce is simplest if there is a marriage contract in which all important points such as maintenance, asset equalisation and equalisation of pension entitlements are fairly regulated.
The family court asks the pension insurance institutions for each spouse about the pension entitlements acquired during the marriage. As soon as the court has this information, the court sets a divorce date. On this date, both spouses must appear and at least one of them must be represented by a lawyer, after which the marriage is formally divorced.
We rightly talk about these topics in our Round Table meetings. The Round Table is an action of Herfurth & Partner and serves to clarify and secure wishes and decisions in the family in connection with assets, provision and succession.
The next dates can be found in the Round Table section (welcome homepage).
Further information on many topics can be found in the Publications section (welcome homepage).
Angelika Herfurth
Attorney at law and specialist lawyer for family law