GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
and divorce that deviate from the statutory provisions. However, this power of disposition is subject to certain limits. In particular, it must not lead to the protective purpose of the statutory provisions being arbitrarily undermined by contractual agreements. This would be the case, for example, if the agreement resulted in a unilateral distribution of burdens that was not justi ‑ fied by the circumstances of the marriage and would be unreasonable for one of the spouses. A German court reviews this within the framework of a judicial review of the content when it is called upon to do so. In 2004, the Federal Court of Justice developed a kind of gradation with regard to the possibility of contrac ‑ tually modifying the legal consequences of divorce through its so-called core area doctrine ( Kernbere- ichslehre ), which is still in force today. According to this core area doctrine, the more directly the con ‑ tractual waiver of legal provisions interferes with the core area of divorce law, the greater the burden on one spouse. According to this doctrine, there is lit ‑ tle scope for contractual provisions deviating from the statutory consequences of divorce in the case of maintenance for childcare. The next level includes fur ‑ ther maintenance provisions for post-divorce mainte ‑ nance and pension rights equalisation as anticipated old-age maintenance. Matrimonial property law does not belong to the core area of the consequences of divorce and is therefore most amenable to contractual arrangements. Judicial precedent has developed a two-step assess ‑ ment. First, the court examines whether the agree ‑ ment was manifestly unconscionable at the time it was concluded (effectiveness review – so-called Wirksamkeitskontrolle ), taking into account objective as well as subjective factors, such as pregnancy or economic dependence. Secondly, even if the agree ‑ ment was originally valid and binding, the court may adjust the agreement if its application at the time of divorce would lead to an unreasonable result due to changed circumstances (exercise review – so-called Ausübungskontrolle ). 2.6 Cohabitation: Division of Assets Between Unmarried Couples The applicable law concerning spouses does not extend to cohabitants. Claims can only be made
against each other on the general grounds of German civil law. There are no specific rules for cohabitants, so life partners do not automatically acquire rights based on the duration of their cohabitation. However, if a child is born to a cohabiting couple and the mother cannot be expected to work due to car ‑ ing for or raising the child, the father is obliged to pay maintenance to the mother, in addition to his mainte ‑ nance obligation towards the child. The maintenance obligation begins four months before the birth at the earliest, and continues for at least three years after the birth. It can be extended for as long as and to the extent that this is equitable. Partners in a non-marital partnership also have the option of regulating their relationship through a cohab ‑ itation agreement. 2.7 Enforcement of Financial Orders Court decisions dealing with matrimonial property arrangements and/or maintenance payments are enforced in Germany in the same manner as ordinary monetary claims, by way of formal enforcement pro ‑ ceedings pursuant to Section 120 of the FamFG in conjunction with Sections 704 et seq of the Code of Civil Procedure (ZPO), if a party fails to comply with them. As a rule, the creditor must obtain an enforce ‑ able title, such as a provisionally enforceable or final decision of the Family Court. Other enforceable titles also exist – eg, a certificate issued by the Youth Wel ‑ fare Office for child maintenance or a notarised deed. The enforceable title must have been served on the debtor. Once these requirements are met, enforcement may take various forms. Common methods include the garnishment of wages and salaries, the attachment of bank accounts, the seizure of assets, and the reg ‑ istration of enforcement measures against real estate property. Recognition and Enforcement of Foreign Financial Orders The procedure for enforcing foreign court decisions in Germany depends on whether the judgment origi ‑ nates from an EU member state or a non-EU member state.
139 CHAMBERS.COM
Powered by FlippingBook