GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
Procedural Law Neither spousal maintenance during separation nor post-divorce spousal maintenance are automatically included in the divorce proceedings. Post-divorce spousal maintenance may, upon application, be dealt with within the divorce proceedings as a matter joined to the divorce. Spousal maintenance during separa ‑ tion, by contrast, must be pursued in separate pro ‑ ceedings independent of the divorce. In such cases, maintenance may be secured on an interim basis by way of an interim order, which likewise requires an application and that the claim be made plausible on a prima facie level. German courts usually order monthly maintenance payments. A lump sum payment may be imposed only in exceptional cases and if there is an important reason and the obligated party is not unreasonably burdened. 2.5 Prenuptial and Postnuptial Agreements In Germany, both prenuptial and postnuptial agree ‑ ments are generally recognised. Spouses are free to regulate the financial consequences of marriage and divorce by agreement, particularly with respect to matrimonial property regimes, spousal maintenance and pension equalisation. It is also possible to regu ‑ late financial claims relating to children. However, it is not permissible to waive child support or separation maintenance for the future. Formal Requirements Nuptial agreements can be concluded at any time – ie, before, during or after a marriage. In order to give effect to the agreement, a prenuptial agreement must be certified by a notary in the presence of both par ‑ ties. Postnuptial agreements must be either notarised or recorded by the court in order to give effect to the agreement if it is concluded while divorce proceedings are pending. If the agreement is concluded after the divorce is legally binding (eg, concerning post-marital maintenance), a notarisation or recording by the court is no longer necessary. The choice of a matrimonial property regime always needs to be notarised. Judicial Review of Content In principle, spouses may enter into mutual agree ‑ ments regarding the legal consequences of marriage
and the spouse entitled to maintenance would nor ‑ mally receive 45% of this difference. In the case of high incomes, a specific calculation of needs is made, as in these cases it is assumed that not the entire income was used to cover living expenses. Separation maintenance is generally payable until the divorce becomes legally binding. However, after the first year of separation has expired, changes must be taken into account, in particular the renewed full obligation to earn a living on the part of the spouse who has not been in full-time employment up to that point, provided that there are no impediments such as childcare or illness. Post-Divorce Spousal Maintenance As a general rule, following the finalisation of the divorce, the principle of personal responsibility applies. Maintenance is only payable if one of the legal grounds for maintenance set out in Sections 1570 et seq of the BGB applies. These grounds include care for common children, illness, unemployment, the need for vocational training and supplemental maintenance. If a ground for maintenance is established, the amount of maintenance is usually also determined according to the principle of equal sharing. There are no fixed statutory time limits for the dura ‑ tion of post-divorce maintenance; the length of the obligation depends on the individual circumstances of each case. Particular consideration is given to marital disadvantages and aspects of post-marital solidarity, with the duration of the marriage also playing a role. It is important to note, however, that spousal mainte ‑ nance at the level of the marital standard of living is generally only owed for a transitional period follow ‑ ing the divorce. This transitional period is intended to enable the economically weaker spouse to adjust to the new living circumstances. Beyond this phase, maintenance is only payable in an amount sufficient to compensate for specific disadvantages caused by the marriage – such as impaired career development or reduced earning capacity – unless another statutory ground for ongoing maintenance applies.
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