GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
MAYDELL FamilyLaw Willy-Brandt-Allee 4 53113 Bonn Germany Tel: +49 228 4100140 Email: info@maydell-familylaw.com Web: www.maydell-familylaw.com
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce A marriage can be dissolved by divorce if it has bro ‑ ken down (Section 1564 of the German Civil Code, or BGB). This is assumed if the spouses are living apart and it cannot be expected that they will resume their cohabitation. If the spouses have not yet lived apart for one year, divorce can only be granted in hardship cases – eg, cases of severe domestic violence. The breakdown of a marriage is presumed unchallenge ‑ able if the parties are separated for more than one year and the divorce is uncontested. In the case of separation of more than three years, the consent of the parties is not required. The same grounds apply for same-sex spouses. There is no divorce based on the fault of a spouse. Process and Timeline for Divorce Divorce proceedings must be initiated by a lawyer fil ‑ ing an application with the family court. In the case of an uncontested divorce, the respondent is not required to be presented by a lawyer. There is no predictable timeframe for divorce proceed ‑ ings. If the parties reach a comprehensive divorce set ‑ tlement beforehand, including the equalisation of pen ‑ sion rights, an uncontested divorce can be finalised within a few weeks. Otherwise, it will usually take at least six months. If, upon request, ancillary matters such as matrimonial property issues and maintenance also need to be clarified as part of the divorce pro ‑ ceedings, divorce proceedings can take years.
Service After the divorce petition has been filed, the court first requires an advance payment for court fees to be made. After this has been received by the court, the court serves the divorce petition on the other party, who is given the opportunity to comment on it. In Germany, service is effected by registered letter. Service by e-mail is not possible. If the respondent lives abroad, the applicable rules for service depend on the country (eg, whether the service takes place in a member state of the EU or not). The timeframe of service also depends on the country, and may take several months. Treatment of Religious Marriages and Divorces Under German law, a marriage can only be validly concluded before the registry office. A religious wed ‑ ding is not sufficient to establish the civil law conse ‑ quences of a marriage. The same applies for divor ‑ cees, which require a court decision. Whether foreign religious marriages or divorces are recognised in Germany depends on the individual case. When recognising a religious marriage, the nationality of the spouses must be taken into account, as well as other circumstances (whether the marriage was concluded in Germany or abroad, whether the “marriage” was celebrated before a person properly authorised by the foreign government, whether for ‑ mal requirements of the applicable foreign law have been met, etc). If a divorce has been carried out by a religious authority abroad, its recognition in Germany generally depends on the qualification of the foreign decision (for example, whether a decision by a reli ‑ gious court abroad has direct effect in that country).
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