GERMANY Trends and Developments Contributed by: Valentin Todorow, Benedikt Xylander and Franziska Kästle, Raue
effort to balance economic and non-financial child ‑ care contributions. • In Germany, the statutory regulation of child main ‑ tenance is still geared towards one parent being the primary carer, with the other parent having visi ‑ tation rights and paying maintenance. This meant for a long time that, as long as one parent took on more than half of the childcare responsibilities, the other parent was liable for the full maintenance amount. • However, taking into account the trend towards a more equal division of childcare, as explained above, courts are now increasingly considering the extent to which the maintenance-paying parent is involved in childcare. In line with these developments, courts are also increasingly recognising the monetary value of (physi ‑ cal) childcare work in spousal support calculations. While it has long been recognised that child main ‑ tenance payments are taken into account, courts now also recognise non-financial childcare itself as a factor that reduces income, ultimately leading to an increased spousal maintenance entitlement for the parent providing physical childcare. Hague proceedings/international child abduction Case law continues to address child abduction cases under the Hague Convention, with special regard to Article 13 (b). This is specifically the case with returns required to Ukraine or Israel. According to the higher and federal courts, returns to Ukraine as a war zone are still generally dismissed, although the specific region of Ukraine in question is taken into account. Legal parentage and recognition of same-sex parents Currently, German parentage law still does not allow two women or a woman and a non-binary person to be registered as the two legal parents at birth, as the statutory text requires a “father” as the second parent. This leaves a significant gap for same-sex marriages, requiring adoption proceedings for the recognition of the second parent. Currently, four cases challeng ‑ ing this as unconstitutional are pending at the Fed ‑ eral Constitutional Court ( Bundesverfassungsgericht ). Reform plans by the previous government were not
pursued following the government change in spring 2025. Jurisdiction and Foreign Orders Development of the term “habitual residence” in European regulations The habitual residence of a person is an important factor for international jurisdiction and applicable law under European regulations. This applies to family law matters such as divorce proceedings, matrimo ‑ nial property proceedings, maintenance and custody matters. The term “habitual residence” is not defined in Euro ‑ pean regulations and is thus subject to case law developed by the Court of Justice of the European Union (CJEU). In a recent ruling, the CJEU has further specified the term. Germany’s Federal Court of Justice had submitted the question to the CJEU of whether a married couple – both German diplomates on a mission in Russia and staying in Russia for multiple years – still had their habitual residence in Germany. The CJEU ruled that the couple still had their habitual residence in Ger ‑ many, again emphasising the importance of the over ‑ all assessment of all circumstances of the individual case, including the spouses’ intention to establish the habitual centre of their interests in a country on a per ‑ manent basis instead of focusing on mere physical presence at a location. Enforcement of foreign maintenance orders Foreign maintenance orders can be enforced in Ger ‑ many, and there is a growing trend of such enforce ‑ ments. • If the foreign order originates from a member state of the European Union, all other member states recognise that order and it can be enforced in Ger ‑ many without any further steps. • If the order does not originate from a member state of the European Union, it can still be enforced in Germany, but it must be formally recognised by a German court beforehand. German courts will usually recognise foreign orders if they were issued by the competent court and if they do not violate the German ordre public (ie, they do not lead to a
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