"A part of you goes with everyone you lose." — Marc Levy
Despite their economic and social well-being, married couples in Germany, as in many other countries, not infrequently get divorced. Beyond the difficult emotional side of divorce, it is worth taking a close look at the legal side of the process. Many people know that, before tying the knot, it is worth weighing and thinking everything through carefully, since divorce in Germany is a lengthy, expensive, and troublesome affair. It should be noted right away that divorce under German law differs substantially from the fast-track process common in the CIS countries. The first key difference is that a marriage cannot be dissolved through a local registry office — a divorce is always handled by the courts, regardless of whether there are any disputes, and always requires the involvement of a lawyer. Anyone who has firmly decided to divorce should therefore choose a professional to represent their interests in the divorce proceedings and sign an appropriate engagement agreement for legal services with them. Naturally, the petition is drafted and filed by the lawyer on the client's instructions, taking into account the particulars of the client's situation and wishes. The lawyer prepares the documents needed to begin the divorce proceedings and accompanies the client through the entire process to its successful conclusion.
One of the key preconditions for a divorce to actually go through under German law is the so-called "year of separation," or Trennungsjahr. This is a mandatory requirement, without which the court will not grant the divorce: under §1567 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB), a marriage may only be dissolved once the spouses have lived apart for a year. Exceptions apply where continuing the marriage would impose unreasonable hardship on one of the spouses — for instance, in cases of addiction or abuse by the other spouse. Following the logic of the German legislature, a year of living apart is treated as conclusive proof that the marriage has failed, that the marital relationship no longer exists, and that there is no longer any point in waiting for reconciliation. Only in such a case does §1565 BGB permit the marriage to be dissolved. Incidentally, the "year of separation" is a somewhat elastic concept. Under §1566 BGB, twelve months of separation is sufficient to establish that the marriage has failed where the spouses file for divorce jointly, or where the respondent consents to the divorce and does not oppose it. Otherwise, the law requires the Trennungsjahr to last at least three years. Under §1567(2) BGB, if, during the Trennungsjahr, the spouses lived together again briefly — for no more than three months — in an attempt at reconciliation, but then separated once more, that period does not interrupt the running of the "year of separation."
Important at Divorce
This is a mandatory requirement, without which the court will not grant the divorce: under §1567 BGB, a marriage may only be dissolved once the spouses have lived apart for a year.
Family law is one of the core practice areas of our law firm. In our practice, we frequently encounter a wide range of divorce cases under the requirements of German law. In some cases, the spouses manage to reach an agreement and separate amicably, concluding appropriate arrangements outside of court proceedings. In other situations, matters become so heated that professional intermediaries — in this case, lawyers — become indispensable.
A young woman came to our firm for a consultation — let's call her Oksana. At her first meeting with the lawyer, she told the following story. Oksana had come to Germany from a small town in western Ukraine roughly seven years earlier on an Au Pair program. At the time, she had no far-reaching plans to relocate to the country permanently — she simply wanted to broaden her horizons and try something new. Fate, however, had other plans. One weekend, at a local nightclub, the young woman met an attractive young man, a German citizen named Thomas (name changed). There was an instant spark between them from their first meeting, and the relationship developed quickly. Oksana and Thomas spent all their free time together, visiting various cafés and restaurants and going on long walks. After about a month, Thomas introduced Oksana to his parents and brother, after which the young woman began visiting regularly and would occasionally stay the night on weekends and holidays. When Oksana's time under the program was coming to an end, Thomas proposed to her, and she accepted immediately. The couple soon married in Denmark, and Oksana, having obtained a national visa in her home country, moved to Germany permanently in her new status. Everything seemed to be going quite well, but the young couple had nowhere of their own to live — the young husband's earnings were not enough for a decent apartment, so they decided to move in with Thomas's parents for the time being, in the home where he had lived even before meeting Oksana. Being gentle and accommodating by nature, the young woman put up with living under the same roof as her mother-in-law for a long time. She always held to the view that "a bad peace is better than a good quarrel," and so did everything she could to avoid friction and conflict. By the third year of their life together, however, the situation began to escalate. Thomas was constantly either at work or away on endless business trips, and his elderly mother, while never voicing her displeasure directly, grumbled constantly and spoke unflatteringly of her daughter-in-law behind her back. At the same time, the search for a separate apartment for the couple had reached a dead end. After several fruitless attempts to talk to her husband and get him to understand the situation, Oksana decided to pack her things and walk out. After three years of marriage, she had become thoroughly disillusioned with it and saw no way out of the family crisis that had developed.
Finding herself out on the street, the young woman turned to her one close friend, who kindly took her in for a while. Oksana's salary from her job as a sales assistant in a youth clothing store was enough only for the bare minimum of groceries and other everyday necessities. She came to our law firm for help with the divorce proceedings ahead of her. Our lawyer accompanied Oksana through every stage of the divorce, from start to a successful conclusion, and one of the issues on the agenda was obtaining payments from her husband (German: Trennungsunterhalt) during the period of separation (Trennungsjahr), which in our client's case lasted 12 months.
At the first consultation, the lawyer explained in detail that German law, for the most part, insists that spouses support themselves independently after separating. German law, however, has one particular feature at divorce — the right of the lower-earning spouse to receive maintenance during the separation period from the spouse with the higher income (§1361 BGB). According to our client, Oksana's husband worked for one of the major airlines, at the check-in counter of an international airport. Our client stated that Thomas's monthly income was roughly four times higher than her own. We formally requested that our client's husband provide information about his current income and expenses. Some time later, we received the requested information from the lawyer Thomas had appointed to represent him. What followed was a painstaking process of calculating the income to be recognized for setting spousal maintenance, and the necessary expenses to be deducted in determining the maintenance amount.
In particular, according to Thomas's lawyer, the following items should have been deducted from his income when calculating the amount of spousal maintenance before the divorce: overtime pay; installment payments to the bank on a loan for a newly purchased kitchen; contributions to a private pension fund; and union dues.
Our firm's lawyer, representing Oksana's interests, examined each of these items and, in a response letter, raised the following objections: Thomas had been working regular overtime from the very start of his employment at the company, so it could not be treated as additional income he had only begun earning after separating from his wife — our client's former husband's salary should accordingly be measured including the additional overtime pay; the new kitchen had been bought on credit only after the separation, on Thomas's own decision, so the expense of repaying the loan and interest had arisen only after the separation began and should not be deducted from income when calculating spousal maintenance; the union dues were not mandatory and therefore could not be treated as an expense reducing Thomas's income from employment; and the contributions to the private pension fund were accepted as properly deductible from the income used to calculate the Trennungsunterhalt.
Following negotiations and correspondence with opposing counsel, our client's lawyer succeeded in reaching an agreement with the other side's lawyer. The divorcing spouses signed an agreement, drafted by our firm's lawyer, fixing a set amount of maintenance to be paid before the divorce.
This sum is, of course, no solution to all of our client's pressing problems, but it will nonetheless help her build a new life in which she can rely on her own resources. We remained available to Oksana to continue supporting her through the rest of the divorce proceedings. We hope our readers never find themselves in need of services like these — but should the need ever arise, we invite you to turn to the experienced, qualified specialists at our law firm.
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