Family Law Comparative Guide –

1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children’s matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

Family law is mainly governed:

• by the fourth book of the Civil Code; and
• procedurally, by the Act on Proceedings in Family Matters of Non-contentious Jurisdiction.

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

EU regulations: Germany is a party to the following EU regulations:

• the Brussels IIb Regulation, which governs international jurisdiction within the European Union regarding divorce and parental authority;
• the Rome III Regulation, which governs the applicable law in divorce matters; and
• the EU Maintenance Regulation (4/2009).

Other treaties: Germany is also a party to:

• the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children; and
• the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

In general, the family courts are responsible for enforcing the applicable law and regulations. The family courts have the power to make orders regarding:

• the custody of children;
• money orders (law of obligations);
• divorce (status); and
• restraining orders.

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

Yes, foreign judgments and orders can be enforced; the applicable mechanism will depend on the nature of the foreign order. An order that is released by the court of another European member state may be directly enforceable, without any enforcement proceedings, due simply to the nature of the order. An order from a non-European member state must be enforced through a domestic recognition proceeding, pursuant to Sections 108 and following of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

For the German family courts to exercise jurisdiction, the parties must meet the requirements of Article 3 of the Brussels IIb Regulation. The German courts have jurisdiction if the party filing for divorce can prove one of the following:

• 
  Germany is the place where:

• • the spouses are habitually resident;
  • the spouses were last habitually resident, insofar as one of them still resides there;
  • the respondent is habitually resident;
  • in the event of a joint application, either spouse is habitually resident;
  • the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made; or
  • the applicant is habitually resident, if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there; or

• both spouses have German nationality.

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

In general, jurisdictional issues are governed by the principle of lis pendens. The jurisdiction that is called on first has jurisdiction.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

Same-sex marriage has been officially recognised in Germany since 2017; no special requirements need be met in this regard. Legally, it is largely equal to marriage between males and females, with most of the laws also applicable to same-sex spouses. However, differences exist in questions of adoption and parentage. Between 2001 and 2017, before same-sex marriage became legal, a registered civil partnership could be concluded.

The laws applicable to marriages and registered civil partnerships do not apply to cohabiting couples. Only a few laws take a cohabiting relationship into account.

For example, according to Section 563a Abs 2 S 3 of the Civil Code, if one of the cohabiting partners dies, as in the case of a married couple, the other partner has the right to enter into the deceased partner’s rent contract for the apartment in which the couple lived together.

Furthermore, in relation to the adoption of a partner’s child, the rights of cohabiting partners are equal to those of a married couple (Section 1766 a of the Civil Code).

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

German law has no specific rules on the breakdown of a cohabiting relationship. Moreover, it is not possible to apply the regulations on marriage to non-marital cohabitation by analogy, as there is no regulatory gap which allows for this. Therefore, in case of termination of a non-marital cohabitation, there are no enforceable claims to maintenance or pension shares.

However, in the past the courts have allowed property equalisation for so-called ‘community-related contributions’ – that is, expenses that go beyond normal everyday expenses and that are linked to the expectation that the partnership will last. The burden of proving that expenses are ‘community-related contributions’ rests with the partner making the claim. Furthermore, in the event of a breakup, it may be possible to demand the return of a gift that has been gifted to the other partner. However, there are strict requirements in this regard, as the other person must be proven to have shown gross ingratitude with respect to the donor (Section 530 of the Civil Code).

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

It is not possible for cohabiting couples to register a civil partnership in Germany.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Yes. Foreign civil partnerships are recognised.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

A legal and valid marriage in Germany must be concluded before a marriage register (Section 1301 Abs 1 S 1 of the Civil Code). Since marriage is considered a highly personal legal transaction, it cannot be concluded by proxy. Therefore, both spouses must be present at the marriage ceremony and must make an independent declaration (Section 1311 of the Civil Code).

In order to be approved for marriage, it must first be determined that there are no legal impediments to marriage. Those impediments are regulated in Sections 1303 and following of the Civil Code. A person must be over the age of 18 and be legally capable of entering into a marriage. Furthermore, a marriage should not be concluded between close relatives or if one of the future spouses is already married or in another civil union.

However, a marital impediment does not mean that the marriage cannot be contracted: it is contestable and can be annulled.

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

Since a legal and valid marriage requires a civil wedding ceremony before a marriage registrar, common law and de facto marriages are not recognised as valid marriages.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

To be accepted as a legal and valid marriage, spouses who marry in a religious ceremony must also conclude their marriage before a marriage registrar. Solely religious wedding ceremonies are not recognised as legal marriages. The same applies to customary marriages.

Marriages concluded in another country will generally be recognised in Germany if the material and formal requirements of the country of origin of the spouses were met at the time the ceremony was concluded (Article 13 Abs 1 EG of the Civil Code). An exception applies if:

• at the time of the marriage, one of the spouses was under the age of 17 (Article 13 Abs 3 EG of the Civil Code); or
• a foreign legal norm supporting the marriage is irreconcilable with the principles of German law (violation of ordre public).

No additional recognition process is required. If the validity of the marriage becomes important as a preliminary question for another decision, the court will examine the prerequisites accordingly. If one of the spouses holds German citizenship, it is possible to file a request to officially include the marriage contract in the German marriage register.

4.4 Does a specific marital property regime apply in your jurisdiction?

The statutory property regime in Germany is ‘the community of accrued gains’ (Sections 1663 and following of the Civil Code, German “Zugewinngemeinschaft”). In this case, not all property of the two partners will automatically become joint property; rather, the partners’ assets will remain separate. This also affects obligations that one spouse enters into. As a rule, one spouse is not liable for the obligations of the other. In the event of divorce, one spouse does not have to answer for the other’s debts.

An exception to this is when one spouse enters into a transaction to adequately cover the family’s living expenses. In the case of such a legal transaction, the other party is also obliged and may have to pay the costs. This usually involves purchases of food and household items.

Furthermore, when living under the community of accrued gains, there may be restrictions with regard to the power of disposal of one spouse. In principle, each spouse is allowed to freely dispose of his or her property. However, there is an exception if one spouse owns an object or a property which, due to its value, constitutes practically all of his or her assets. In this case the other spouse must approve the disposition. To determine whether a spouse has disposed of all his or her assets, a comparison must be made between the assets sold and the assets still in existence. If a spouse has concluded a contract without consent, he or she can only fulfil the obligation entered into if the other spouse consents.

A further restriction on disposal arises for objects of the matrimonial household. According to this, a spouse may only dispose of objects of the marital household that belong to him or her alone with the consent of the partner.

If the spouses wish not to live under the community of accrued gains, they can conclude a notarised marriage contract and choose a different property regime, such as the separation of property or community of property.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

In general, pre- and postnuptial agreements are recognised under German family law. Pre-and postnuptial agreements which were concluded in countries other than Germany can also be recognised in divorce proceedings carried out in Germany.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

The prerequisites for a legally valid agreement are:

• the consent of both spouses; and
• an official notarisation (Section 1410 of the Civil Code).

Although in general the parties are free to choose the content of the agreement, there are a few exceptions.

Examples of ineffective regulations include:

• the substantial disadvantage of one spouse; and
• the violation of applicable law or morality.

In particular when it comes to the settlement of maintenance, there are a number of things to consider. Not all forms of maintenance can be modified or excluded. Accordingly, it is legally void to exclude:

• separation (Section 1617 of the Civil Code); and/or
• child maintenance.

In addition, a passage that excludes maintenance due to old age, illness or infirmity is seen as immoral and thus invalid. The exclusion of maintenance during the care of children up to the age of three cannot be effectively agreed.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

If the parties have international connections, the applicable law will be determined by a pre- or postnuptial agreement, including the law that governs the agreement itself (choice of law). If assets are located abroad, they will be governed by the law of agreement to avoid any future dispute regarding the limitation of the agreement to such assets that are within the jurisdiction in which the agreement has been signed.

If possible, the parties should agree on the jurisdiction (choice of jurisdiction) to avoid the agreement being interpreted by a foreign court.

The language should be as simple as possible; and if possible, the agreement should be bilingual or multilingual, depending on the languages spoken by the parties to the agreement.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

As same-sex marriages are mostly treated identically to different-gender marriages, there are no special requirements for same-sex couples to enter into pre- or postnuptial agreements.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

A separation agreement is legally treated no differently from a pre- or postnuptial agreement. The only difference is the time of conclusion. Like a pre- or postnuptial agreement, a separation agreement must be notarised to be valid.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

A divorce petition must be filed with the family court. Which family court has jurisdiction is regulated in Section 122 of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction.

Accordingly, the court in whose district one of the spouses with all joint minor children has his or her habitual residence will have jurisdiction in the first instance. Otherwise, the court in whose district one of the spouses with some of the joint minor children has his or her habitual residence will have jurisdiction, provided that no joint minor children have their habitual residence with the other spouse.

If none of the above apply, jurisdiction will lie with the court in whose district the spouses last had his or her common habitual residence, if one of the spouses still has his or her habitual residence in the district of that court when the lis pendens arises. Other possible jurisdictions include:

• the court in whose district the defendant has his or her habitual residence;
• the court in whose district the claimant has his or her habitual residence; or
• as a last possibility, the Schöneberg Local Court in Berlin.

As long as one of the spouses resides in the European Union or has EU citizenship and the divorce proceedings were initiated after 1 August 2022, the international jurisdiction will follow EU Regulation 2019/ 1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Brussels IIb). For earlier divorce proceedings, the previous Brussels IIa Regulation will still apply.

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

The single requirement for a divorce is the breakdown of the marital relationship past the point of repair (Section 1565 of the Civil Code). This is usually the case if the spouses have been separated (ie, have lived apart) for more than a year. ‘Living apart’ in this case can also mean still living in the same apartment/house, but – after an overall consideration of the living circumstances – not making any effort to work towards fixing the marital relationship. The date of the separation should therefore be documented and – especially where only one party wants a divorce – proven by providing documents or witness testimony.

A divorce before the end of the separation year can be granted only under exceptional circumstances in which it would be unconscionable for one of the spouses to stay in the marriage any longer – for example, where one partner is abusive.

6.3 How does the divorce process typically unfold and what is the general timeline?

Divorce proceedings are initiated by submitting a petition to the family court, which must be filed through the representation of an attorney. Once the advance court fees have been paid by the applicant, the petition will be served on the other spouse, who will be asked for a statement.

The divorce hearing is not open to the public and the spouses must usually appear in person.

In principle, only the divorce itself and the pension equalisation (ie, the adjustment of pension benefits acquired during the course of the marriage) must be settled as part of the divorce. All other ancillary matters must be filed separately to be part of the divorce proceedings. Those can concern, for example:

• all forms of maintenance (eg, family maintenance, post-marital maintenance, child support);
• parental custody; and
• the equalisation of accrued gains (if the marital property regime of community of accrued gains applies).

The timeline varies depending on the amount and extent of the matters being heard in the divorce proceedings. In case of divorces by mutual consent with no additional petitions, a divorce should be finalised within a few weeks of filing the divorce petition. The process can be expedited by:

• filing for divorce before the end of the separation year; and
• having all necessary documents needed for pension equalisation ready before the divorce hearings begin.

If all of the requirements for divorce are met, the court will pronounce the divorce decree at the end of the divorce hearing. Both spouses will be served with the decision. The time limit for appeal is one month. Provided that both spouses are represented by a lawyer, a waiver of appeal can be declared in court. The divorce then comes into force immediately.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

In principle, divorce proceedings only include the divorce itself and the pension equalisation. However, the parties may decide to include other matters, such as maintenance, in the divorce proceedings. If other issues are included in the divorce proceedings, the divorce cannot be finalised until all other matters have been settled.

If the maintenance matters (or similar) are dealt with in separate proceedings, the divorce can also be finalised beforehand.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

Non-judicial divorces are not recognised in Germany. A marriage can only be effectively terminated before a court.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

As a rule, foreign divorce decrees must be officially recognised in Germany (Section 107 of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction). There is no need for an official recognition process in case of divorce decrees issued by a court in an EU member state (except Denmark), as long as the divorce proceeding were initiated after 1 March 2001.

A formal recognition procedure is also not necessary if a marriage has been dissolved by a court or authority of the state of which both spouses are exclusively citizens (ie, no dual nationality) at the time of the decision.

Otherwise, recognition is granted upon application. The application can be filed at a German embassy or a German registry office. The application must contain:

• the official recognition form;
• the foreign divorce decree;
• the marriage certificate;
• proof of citizenship; and
• a statement of the economic circumstances of the applicant.

Additionally, if the documents are not in Germany must be translated into German by an official translator.

The fee for the recognition procedure varies depending on:

• the extent of the matter; and
• the economic circumstances of the applicant.

The bars to recognition can be found in Section 109 of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction. They include:

• the irreconcilability of the divorce decision with the principles of German law (violation of ordre public); or
• an opposing ruling.

Like religious marriages, religious divorces are not recognised as legally valid in Germany.

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

A marriage will be annulled by court order if it was concluded against the German marriage regulations set out in Sections 1303 and following of the Civil Code. This can be the case if one of the partners was not legally capable of entering a marriage contract or was not of legal age (18 years) at the time of marriage. Also, a so-called ‘marriage of convenience’ or a marriage as the result of threat or deception can be subject to annulment.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

If one spouse lives abroad, he or she can designate a person in Germany to whom court documents such as the divorce petition can be served.

If the other spouse cannot be found, there is the option of public service (Section 185 of the Code of Civil Procedure). The service is then replaced by a public notice in the courthouse. The papers count as served if one month has passed since the release of the notice. However, the requirements for this are strict and it must be proven that everything has been done to establish the whereabouts of the spouse.

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

No.

7.2 Spousal and child maintenance:

1. What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
2. What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
3. When do spousal and child maintenance expire?
4. What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
5. Which bodies are responsible for issuing child support orders in your jurisdiction?
6. Does the child support regime vary depending on whether the parents’ relationship was formalised (eg, marriage/civil partnership/co-habitation)?
7. Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
8. What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
9. What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

The amount of child support is based on the so-called ‘Düsseldorfer Tabelle‘, which is observed by all family courts and depends on:

• the income of the person obliged to pay maintenance; and
• the age of the child.

In the case of underage children, half of the child benefits are deducted; and in the case of children of full age, the full child benefit is deducted.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

In terms of spousal support, German family law recognises two different forms. Separation support (Section 1361 of the Civil Code) is paid by the higher-earning spouse to the spouse with less or no income for the period from the official separation until the divorce becomes final.

To be eligible for spousal support, the applicant spouse must be indigent. It must therefore be impossible for the spouse to continue to maintain the approximate standard of living that characterised the intact marriage. The decisive factor here is the difference in income between the spouses living separately. Unlike in the case of post-marital maintenance, a spouse who was not employed during the marriage and at the time of separation cannot be referred to gainful employment without further ado.

After a divorce, there may be an obligation to pay post-marital maintenance. However, post-marital maintenance follows different principles from separation maintenance. In principle, German law assumes that after a divorce each spouse is obliged to provide for himself or herself. Post-marital maintenance is therefore limited to cases where one spouse is verifiably unable to support himself or herself. For that reason, it must be explained why it is not reasonable to take up gainful employment.

Relevant in particular is the case in which a parent cannot go to work due to the care of a minor child. This is usually assumed to be the case when the child is up to three years old. After that, payment of post-marital maintenance can be claimed only under special circumstances. Likewise, a claim to maintenance may exist if:

• work can no longer be performed or can be performed only partially due to illness;
• the person is registered as a jobseeker; or
• the income is not sufficient to fully support himself or herself.

Child support exists irrespective of whether the parents live together or separately, or are married or not. If the parents live separately, the parent with whom the child lives regularly contributes child support in the form of board and lodging. The other parent, on the other hand, is obliged to pay money.

Regardless of whether child or spousal support must be paid, the paying person must be able to pay the maintenance. In this case, a sum is deducted from the available funds that the person obliged to pay maintenance needs to live on himself or herself.

Any child maintenance must be paid before the separation maintenance and can therefore lead to an inability to pay separation maintenance.

(c) When do spousal and child maintenance expire?

Regularly recurring payments such as maintenance payments usually expire after three years (Sections 197 Abs 2 195 of the Civil Code). The statute of limitations begins to run at the end of the year in which the claim arose and the entitled person learned of the circumstances of the claim (Section 199 Abs 1 of the Civil Code). Maintenance claims that were already due at the time of titling expire after 30 years (Section 197 Abs 1 No 3 of the Civil Code).

The limitation period for maintenance claims of a child against his or her parents is suspended until the child reaches the age of 21 (Section 207 Abs 1 S 2 No 2a of the Civil Code). The limitation period does not begin to run until the end of the year in which the child reaches the age of 21. The statute of limitations for maintenance claims between spouses is suspended until the divorce comes into effect (Section 207 Abs 1 S 1 of the Civil Code).

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

A current claim to child and separation spousal maintenance (if the divorce has not yet been applied for) expires with the death of the person liable to pay maintenance (Section 1615 Abs 1 of the Civil Code). However, this does not apply to:

• payments already due but not yet paid; or
• maintenance that must be paid retrospectively.

Those claims must be paid by the heirs of the paying party. Since child and separation maintenance must be paid monthly in advance, if not yet paid, the heirs are always liable for maintenance in the month of death (Section 1612 Abs 3 and Section 1631 Abs 4 of the Civil Code).

If the spouses lived separately at the time of death and the divorce was already filed for, the maintenance claim for separation maintenance does not expire and must be paid by the heirs.

The same applies to a current claim to post-marital spousal support. The amount of support is limited to the amount of the compulsory portion heritage to which the dependent spouse would have been entitled if the marriage had not ended. The compulsory portion is a mandatory portion of the inheritance that the spouse is entitled to by the law, normally ¼.

Even during a bankruptcy, maintenance must continue to be paid as far as possible. In this context, maintenance payments have priority over other payments.

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

A German child support order can be issued by either the youth welfare office or the court. In contrast to titles issued by the courts, a youth welfare certificate can be issued free of charge at any youth welfare office. However, for such an extrajudicial maintenance order, the obligated party must agree to the payment by signature. Therefore, if the claim or the amount is contested, the beneficiary must seek a court order.

(f) Does the child support regime vary depending on whether the parents’ relationship was formalised (eg, marriage/civil partnership/co-habitation)?

The obligation to pay child support exists irrespective of the type of relationship that the parents are in.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

When it comes to child maintenance, German family law distinguishes between adult and minor children.

Due to their special neediness, minor children are always entitled to child support.

Child support for minor children must be claimed by the parent with whom the child lives. Irrespective of whether the parents are married, live in a civil partnership or neither, the parent in whose care the child lives may claim child maintenance on behalf of the child, as long as the parents share custody (Section 1629 Abs 2 S 2 of the Civil Code).

However, during the year-long separation period or during ongoing divorce proceedings, the parent who cares for the minor cannot assert maintenance claims as the child’s representative, but only in his or her own name (Section 1629 Abs 3 of the Civil Code).

A distinction must be made for children of full age. Children of full age are also entitled to maintenance if they:

• are still in general school education;
• are not older than 21 years;
• live with one of the parents; and
• are not yet married.

If one of the conditions does not apply – for example, because the child is over 21 or is no longer attending school – adults can only claim child support as long as they are in their first vocational training. Child support for children over 18 can no longer be claimed by a parent. Children who have reached the age of majority must therefore seek their own legal counsel if necessary in order to avoid conflicts of interest.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

As with all legal matters with an international connection, in the event of a dispute over child maintenance, it is first necessary to look at who has international jurisdiction and which law is applicable to the maintenance dispute. Depending on the applicable law, a dispute may have different outcomes.

The international jurisdiction for courts of EU member states (except Denmark) is determined by EU Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. The applicable law follows the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.

The different outcomes that disputes can have, depending on the applicable law, are particularly interesting in matters involving the amount of child maintenance to be paid where one of the parties lives abroad and the subsequent modification of foreign maintenance agreements. While under the Hague Protocol the applicable law for separation and post-marital maintenance can be chosen, this does not apply to child maintenance.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

If a parent does not pay child support, he or she can be sued in court. Since the decision on the claim and/ or the amount of the claim can take a while, depending on the extent of the case, an interim application can be made.

Once the court has issued a maintenance order which has been received by the defendant, it can be enforced immediately (Section 116 Abs 3 of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction). This will mostly be done by wage garnishment, which requires a garnishment and transfer order. This must be applied for at the competent enforcement court, which is the local court at the place of residence of the parent liable to pay maintenance (Sections 802 and 828 of the Civil Code). Other methods of garnishment include garnishments of bank account or property.

In addition to the court, a maintenance title can also be issued by the notarisation of the claims by the youth welfare office or a notary.

7.3 Asset division:

1. What orders can the court make in relation to the division of assets on divorce or judicial separation?
2. What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
3. How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
4. Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
5. Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
6. Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
7. What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
8. If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
9. Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?

A claim for the equalisation of accrued gains is solely a claim for payment, not a claim to a certain asset. The courts therefore can only order to obligated spouse to pay a certain amount as equalisation to the other spouse.

(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?

The default regime for dividing matrimonial property is the equalisation of accrued gains. The assets of the spouses at the time of marriage are compared with those at the time of service of the divorce petition.

An inheritance or a gift received by one spouse during the marriage does not count towards the marital gain, but is treated as if it had already been part of the assets at the beginning of the marriage. An inheritance or a gift therefore will not be divided in the event of divorce.

Furthermore, a gain cannot be negative. Losses of one spouse are not to be balanced out. However, if one spouse enters the marriage with debts, the initial assets may be negative.

When it comes to the division of household assets, those which were acquired and used together are usually seen as owned jointly and must be divided fairly between the spouses (Section 1361 a Abs 1 of the Civil Code). If one of the spouses is the sole owner of a household item, he or she may demand that the other spouse return this item. If necessary or wished for, one spouse can also pay off the other.

The spouses are free to choose another form of division of assets by concluding a notarised marriage contract. One common form chosen over the equalisation of accrued gains is the separation of property. With this, the capital gains earned by the spouses during the marriage are not balanced out between each other. In the event of separation and divorce, each person receives what belongs to him or her and what he or she earned during the marriage.

(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?

If one of the parties ‘loses’ assets due to unreasonable conduct between the date of separation and the date on which he or she is served with the divorce papers, the court can impute financial assets and treat the spouse as if he or she still possesses such assets.

(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?

It is not as common as in other jurisdictions. If the matrimonial assets consist of a property or a business, an accountant or property appraiser may be retained by the court.

(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?

No.

(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?

No. Trusts are unknown in German law and their evaluation is very complicated. The courts may recognise a certain position to a trust as asset, but they vary significantly in their understanding of the construct of a trust. A trust may be considered an asset depending the structure of the trust, a revocable trust may be not even considered an asset.

(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?

The party that has violated the financial order can be ordered to pay damages to the other party.

(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?

The parties can agree on modifications to the default property regime only by notarial agreement. As a general rule, if the parties wish to deviate from the standard regime, a contract must be certified by a civil law notary. The parties can agree to a separation of property or they can modify the default regime by excluding certain assets from the equalisation.

(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

If the German courts have jurisdiction over the property dissolution, the courts first must find that there is no conflicting foreign order. The German courts have jurisdiction over the isolated property dissolution if both parties live in Germany.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

When it comes to custody access arrangements, as a rule for the courts in deciding on custody/access battles, the first priority is the best interests of the child.

In principle, it is assumed that joint custody of both parents is in the best interests of the child.

However, German family law distinguishes between parents who are married and parents who are not married (Section 1626 a of the Civil Code). If married, both parents have joint custody. If not, the mother has sole custody. In this case:

• the father can apply for joint custody via a simplified process; or
• the parents can declare the willingness to exercise joint custody before a notary or at a youth welfare office.

Furthermore, joint custody can arise through a later marriage of the parents. In the case of separation and divorce, parental custody usually remains with both parents.

Nevertheless, the parent with whom the child lives makes the everyday life decisions for the child. Joint custody therefore only has an effect on matters of considerable importance for the child, such as:

• residence;
• major medical procedures; or
• a change of school.

If one parent files for sole custody (in whole or in part), he or she will only be successful if either the other parent agrees or if the family court considers the transfer of parental custody to the applicant to be necessary in the best interests of the child (Section 1671 of the Civil Code). If the child is of at least 14 years, he or she can object to a parents’ agreement.

In relation to parents’ right of access, the law assumes that contact with both parents is in the best interests of the child (Section 1684 Abs 1 of the Civil Code). However, the family court can restrict the contact of one parent with the child if this is necessary for the welfare of the child (Section 1684 Abs 3, 4 of the Civil Code).

Other contact persons of the child – in particular, siblings and grandparents – have a right of contact only if it is positively established that such contact is in the best interests of the child (Section 1685 of the Civil Code).

When deciding on the child’s best interests, the German courts have a slightly different role than in the common law system, as they must investigate child matters themselves. It is the court which collects evidence via child welfare services, an appointed guardian or an expert.

Also, the hearing of the child plays a central role. In general, the court must hear a child if he or she is older than three years. During this hearing the child is represented by a guardian.

Although German law does not define what the child’s ‘best interests’ are, different legal norms and court decisions identify multiple aspects to be considered. The factors to determine a child’s healthy upbringing can include:

• physical, mental and emotional integrity (Section 1666 Abs 1 of the Civil Code);
• the opportunity to grow into an independent and responsible person (Section 1626 Abs 2);
• stability and continuity of the relationship with the parent holding custody, siblings and third parties;
• the parents’ health; and
• financial circumstances.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

For the differences between married and unmarried parents/legitimate and illegitimate children in terms of custody, see question 8.1.

While married parents of different genders automatically share custody, this does not apply to same-sex couples. In a lesbian couple, the woman who gave birth to the child becomes the mother. Her married partner does not automatically become the second parent, as is the case for a man who is married to woman giving birth. However, in order to obtain legal parental status, the partner – married or unmarried – can adopt the child.

If one of the men in a gay couple fathers a child, he can acknowledge his paternity of the child with the mother’s consent even before birth. His partner can then become the child’s second legal parent after the child’s birth by way of stepchild adoption. Stepchild adoption is possible only if the mother consents to it.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

The courts will support the parents in taking family counselling organised by the state youth welfare services.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

The requirements for an expert who can assist in child support hearings are determined by law (Section 163 of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction). Accordingly, an expert must have at least a psychological, psychotherapeutic, child or adolescent psychiatric, psychiatric, medical, pedagogical or social pedagogical professional qualification. If the expert solely has a pedagogical or social pedagogical qualification, he or she must prove diagnostical and analytical knowledge by providing suitable certificates.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

If one of the parents wants to relocate with the child, this parent must file a motion granting him or her the sole decision-making authority regarding the determination of the residence of the child pursuant to Section 1671 of the Civil Code. The main factor is – again – the child’s best interests. If the court finds that it serves the best interests of the child to move with the parent, then such authority will be transferred to the moving parent. If the court finds that it serves the best interests of the child to stay with the non-moving parent, the decision-making authority will be transferred to the non-moving parent.

8.6 What regime applies to the international abduction of children in your jurisdiction?

Germany is a member state of the Hague Convention on the Civil Aspects of International Child Abduction. Accordingly, a parent can apply to the German authorities for the return of the child and the procedure and conditions for the return are determined by this convention.

Germany is also a member state of the Brussel IIb Regulation which regulates the international jurisdiction in all matters of child abduction arising after 1 August 2022. The Brussel IIb Regulation replaced the previous Brussel IIa Regulation, which applies to child abduction cases occurring before 1 August 2022.

Additionally, child abduction is a criminal offence under German criminal law (Section 235 of the Criminal Code), which will apply if:

• German citizens are involved;
• the child resided in Germany before the abduction; or
• Germany was the place of abduction.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

Surrogacy is governed by the Embryo Protection Act. According to Section 1 Abs 2 No 7 of the Embryo Protection Act, it is a criminal offence to:

• perform artificial insemination on a woman who is willing to permanently leave her child to a third party after birth (surrogate mother); or
• transfer a human embryo to her.

Therefore, doctors who take part in surrogacy operations are liable to prosecution. The surrogate mother and the intended parents, on the other hand, are not liable to prosecution under the Embryo Protection Act.

Furthermore, it is prohibited under Section 14 of the Adoption Placement Act to bring together a surrogate mother and intended parents. The agency of surrogacy can also be seen as a criminal act under Section 236 of the Criminal Code.

9.2 Are surrogacy arrangements legal in your jurisdiction?

Surrogacy arrangements concluded in Germany are not legally valid under the Adoption Placement Act; see question 9.1.

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

The commissioning parents must re-register the birth of the child in Germany pursuant to Section 36 of the Civil Status Act. If a German is born abroad, the civil status case can be certified in the birth register upon application. According to Section 36 I 4 of the Civil Status Act, in the case of a birth, the parents of the child and the child himself or herself are entitled to apply. The content of the registration is stipulated in Section 21 of the act. According to Section 21 of the act, the names of the parents must also be entered. If the local registry refuses to re-register the birth, the commissioning parties must file a motion in order for the family court to order the local registry to conclude the registration. The foreign order that established legal parenthood is recognised.

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

German family law recognises various forms of adoption which are manifested in Sections 1741 to 1772 of the Civil Code. These include:

• the adoption of a foreign child (full adoption);
• the adoption of a stepchild; and
• the adoption of a relative.

The full adoption of a foreign child leads to the extinction of all legal relationships with the biological family. The adoptive parents, on the other hand, assume all rights and obligations that go hand in hand with parental status. In order to jointly adopt a child in Germany, one must be married. Unmarried couples must take a diversion via successive adoption, meaning that first one partner adopts the child and after the adoption goes through, the other partner adopts the partner’s child.

The most common case of adoption in Germany is stepchild adoption, in which the biological child of a partner is adopted.

To adopt a stepchild, the couple must be:

• married;
• in a registered civil partnership; or
• 
  in another type of permanent cohabitation. Such a relationship is assumed if the couple:

• • have lived together for at least four years; or
  • have a child in common, with whom they live together.

Furthermore, both biological parents must give their consent.

The adoption of relatives is possible in the case of a relationship of kinship or affinity up to the third degree. However, the adoption of a relative is not ‘full adoption’, so although the relationship with the biological parents ceases, it remains with other relatives.

To be eligible to adopt a child, a person must be at least 25 years old. If a married couple wishes to adopt a child, one of the spouses may only be 21 years old. Furthermore, when deciding on the potential success of an adoption, the family court will conduct a comprehensive assessment of the adoption motives and conditions in which the child would be living.

Under certain conditions it is also possible to adopt an adult. However, this is usually not a ‘full adoption’. The relationship between the adopted person and his or her biological parents remains. The adoption of an adult foreigner usually does not lead to the acquisition of residence rights or German citizenship. The reasons for refusal of an adult adoption include, in particular:

• a sexual relationship between the adoptive parent and the person to be adopted;
• an insufficient age difference; or
• dominating tax or residence law interests.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Since 2017, it has been possible for same-sex couples to adopt a child. The requirement to be married to adopt jointly, or otherwise having to take a diversion via successive adoption, likewise applies. Stepchild adoption is also possible for same-sex couples.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

The courts will encourage the parents at the beginning of the first court hearing to seek an amicable solution. There is no binding ADR in family proceedings.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

ADR is non-binding and voluntary.

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

None.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

A party can file an injunction pursuant to the Violence Protection Act and request measures for his or her protection, including:

• a restraining order requiring the other party to keep a certain distance; or
• a no-contact order.

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

No.

11.3 How are these orders enforced and by whom?

A restraining order is enforced by law enforcement agencies, such as the police.

11.4 How soon will the party’s application be dealt with in these circumstances?

Immediately – within 24 hours if necessary.

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

Yes.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

There are no immediate reforms proposed.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

The parties should seek professional help from either an attorney or a mediator, and should elaborate on what an amicable solution might look like. In order to include the other spouse in this process, mediation is a good tool. The importance of settling on the main issues – such as support, alimony or the adjustment of matrimonial property, as well as child-related issues – requires an open mind throughout the brainstorming phase. The spouses should wait before entering into a contested proceeding and engage professionals to help them with their efforts to settle on the issues. Going to court is costly not only in terms of money but also in terms of time. German civil law notaries are well trained professionals who can deal with the most complex financial matters and work on creative solutions.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.