Unfortunately, the traditional vows of eternal love and fidelity exchanged by bride and groom are not always kept, and nearly every second marriage in Europe ends in divorce. Our regular readers will already know that the divorce process in Germany is anything but quick or easy. That is why modern Europeans now tend toward later marriages, entered into only once all the pros and cons have been carefully weighed, and tend to have children at a fairly mature age. The grounds for dissolving a marriage under German law are set out in §§ 1564–1568 of the German Civil Code (German: Bürgerliches Gesetzbuch — BGB). Under § 1567 BGB, the main legal precondition for a divorce in Germany is the fact of having lived apart for at least one year. This period of separation is known as the "year of separation" (German: Trennungsjahr). These rules apply even where both spouses consent to the divorce. This waiting period exists so that, during that time, the spouses can be certain of, and decide, whether they truly want to divorce. Under § 114 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (§ 114 FamFG), divorce proceedings require the involvement of at least one lawyer, retained by the petitioning spouse, who drafts, signs, and files the divorce petition with the court on that spouse's behalf. The other spouse, too, will need a lawyer if, in addition to the divorce itself, matters such as maintenance payments, the division of pension entitlements, or custody of minor children are also being decided, or if the spouses wish to conclude a court settlement — for example, regarding the amount of maintenance to be paid or the right to see the child. It should be kept in mind that, as a general rule, all rights and obligations relating to minor children remain with both parents regardless of their relationship status. In other words, just as during the marriage, they retain both the right and the duty to make all key decisions concerning their shared children jointly. Parents are usually able to agree independently on which of them the children will live with and how often they will see the other parent. It is worth noting here that in Germany, unlike, say, in Russia or Ukraine, it is quite common for the main burden of caring for a child to fall on the father's shoulders. It happens fairly often that the child's permanent place of residence is the former husband's apartment or house. Situations are also not uncommon in which the parents decide that the child will live with each of them for an equal amount of time (an arrangement covered by the term "Wechselmodell," or alternating residence model). In this arrangement, the child lives at the mother's home one week and at the father's the next. Holiday time is likewise split equally. Another arrangement, the so-called "Nest Model," has recently become popular among more affluent families. In this arrangement, the child's parents, in addition to keeping their own separate homes, rent or buy an additional house or apartment — and it is in this "neutral" home that they take turns spending time with the child. Parents are the people closest to a child and have the greatest stake, of anyone, in the child's harmonious development and in their robust physical and mental health. They need to be firmly aware that, when deciding which arrangement is right for the family they share with their child, they should be guided not by their own grievances, expectations, and ambitions, but by the child's interests. It is rightly held that a child's proper development and personal growth requires contact with all close relatives, and above all with both mother and father. Where parents cannot reach an agreement on their own, third parties become involved in the process. A court, guided by the child's own wishes, a psychologist's recommendations, and information about the parents, may issue a ruling determining which parent the child is to live with and what schedule of contact with the other parent is most appropriate. It is important to note that such court proceedings always take place with a representative of the Youth Welfare Office (German: Jugendamt) present. The views of children between the ages of 4 and 14 are taken into account — and the conversation with the child in the courtroom takes place in the absence of the child's parents from that same room. Children who have reached the age of 14 are already entitled to decide for themselves which parent they will live with. In this article, we would like to share one notable story from our legal practice.
Important at Divorce
The grounds for dissolving a marriage under German law are set out in §§ 1564–1568 of the German Civil Code (German: Bürgerliches Gesetzbuch — BGB).
Our client, let's call him Dmitry, separated from his wife around two years ago. Despite all the grievances and mutual complaints between them, they agreed to raise the daughter born during their marriage together. Under an oral agreement reached between the former spouses, they chose the Wechselmodell. That is, the girl lived with each of them in alternating turns — one week with her mother, one week with her father — and holidays, too, were spent with each parent in turn. In the first year of this life split "between two homes," no serious problems arose. The girl traveled every week from one apartment to the other and back again. Having decided between themselves that, in this case, "a bad peace is better than a good quarrel," the former spouses tried to avoid conflict, and each contributed, in their own way, to raising their shared daughter. Recently, however, Dmitry's ex-wife began saying, with increasing frequency, that this schedule was having a bad effect on the girl's well-being — that when she came back from her father's, she would withdraw into herself for a while and refuse to engage. And just as soon as their daughter fully came back to herself, the time would come again for her father to take her back. The girl's mother even gathered supporting notes from the kindergarten and from the extracurricular activities their daughter attended, stating that during "her father's week" the girl seemed subdued, was less active, and was reluctant to play with other children. It was also alleged that, while the child was staying with her father, it was mainly her grandmother — Dmitry's mother — who looked after her, that the father himself was rarely home for entire days, and that he still had not managed to finish renovations he had started two years earlier. The girl's mother demanded that the residence arrangement be changed and that a different schedule of contact between the girl and her father be established. She was prepared to accept a schedule under which the father would see his daughter only once every two weeks, on weekends. Dmitry, who had always taken an active part in raising his daughter, would not agree to this proposal and felt that such limited contact would not be enough for either him or his daughter. He met with his ex-wife on several occasions to discuss the matters at hand, proposing that they find a solution acceptable to both of them. Unfortunately, the former spouses were unable to reach an agreement, and Dmitry soon received a petition and a summons to appear in court to resolve the question of the child's future living arrangements. He decided to come to us, as he needed qualified legal assistance. Our firm's lawyer, who specializes in family-law disputes, reviewed the case file immediately and began preparing for the hearing. He gathered reliable evidence showing that Dmitry, although he works a great deal, spends practically all of his free time with his daughter. He is actively involved both in her physical and intellectual development and in ensuring she has an interesting range of activities. Her father, for instance, regularly takes her to drawing and rhythmic-gymnastics classes and reads to her. On weekends, moreover, they often go on long walks in the park, to the swimming pool, and periodically attend children's theater performances. According to the kindergarten teachers, the girl had indeed seemed somewhat withdrawn recently, but, in their view, this was equally true during both "her mother's week" and "her father's week." This may have been caused by some objective factor unrelated to either parent, or it may simply have been another stage in the girl growing up. From what the girl said and how she behaved, it was clear that she genuinely enjoyed spending time with both parents in equal measure and always looked forward eagerly to her father's arrival. Her grandmother did indeed actively help raise her granddaughter and periodically dropped her off at and picked her up from kindergarten. The girl enjoyed walking and playing with her grandmother, and, moreover, was entitled to contact with all of her relatives. All of these persuasive arguments, backed by corresponding evidence, were presented in court by our firm's lawyer, who represented Dmitry's interests. Much to our client's relief, the court, having examined the evidence submitted, heard the arguments of both sides, and considered a psychologist's opinion, decided to dismiss the petition and to preserve the existing arrangement of alternating residence and shared upbringing of their daughter.
Unfortunately, on the battlefield of quarreling former spouses, it is often the children who suffer the most. We sincerely hope that this couple will find the patience and wisdom to sit back down at the negotiating table and resolve, peacefully, all matters concerning the beloved child they share. To every other couple who finds themselves in a situation where the relationship has run its course and divorce seems the only sensible way forward, we wish the good sense, and the willingness, to do everything within their power to spare their children from harm. As the Russian essayist and literary critic Dmitry Pisarev rightly observed, a person who truly respects the human individual must respect that individual in their own child too, from the very moment the child comes to feel their own sense of "self" and to distinguish themselves from the world around them.
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