"You will never raise wise men if you keep killing the mischief-makers in children." — Jean-Jacques Rousseau
As our regular readers of the "Law and People" newsletter already know well, divorce in Germany is a long and costly process, which is why families, despite whatever problems and discord they may face, only make that decision as an absolute last resort. 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 and are ready 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.
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).
Divorcing spouses need to bear 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. Every divorce is different, but what they have in common is that the parents need to agree on which of them the children will live with and how often they will see the other parent. It is not uncommon for parents to decide that the child will live with each of them in alternating turns, for an equal amount of time (an arrangement covered by the term "Wechselmodell"). 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 increasingly 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, without question, 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 always 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 the work of our law firm, one of whose core practice areas is family law, we frequently encounter cases requiring us to help resolve questions concerning children's living arrangements after their parents' divorce. In this article, we would like to describe one such interesting case.
A middle-aged woman came to us — let's call her Marina. Her state of mind at the time she came to us left much to be desired, and for good reason. Marina had divorced her husband — let's call him Oleg — after twenty years of marriage. Over the course of their married life, the couple had gone through different periods — both of boundless happiness and of cooling affection. Once quarrels and recriminations became the ordinary backdrop of their life together, and it became clear to each of them that "a broken vase cannot be glued back together," they made the deliberate and, it seems, only correct decision — first to move into separate apartments, and then to divorce. During the marriage, the couple had had a son, Lev (name changed), who was ten years old at the time of the divorce. Since the school and the sports clubs Lev regularly attended were located near Oleg's home, a very difficult decision was made — difficult for Marina, in particular — that the boy would live permanently with his father while seeing his mother on a regular basis. In the early period after moving apart, the couple managed to keep to the arrangements they had reached and to maintain a balanced relationship. Marina visited her son every weekend, and the former spouses spent time with the child together, went on long walks, and attended various educational and recreational activities. Over time, however, uncertainty began to creep into the arrangements concerning Marina's visits with her son. As before, our client would get in touch with Oleg ahead of the weekend and try to arrange their next meeting. To the woman's surprise, Oleg would give her a new reason each time why the weekend meeting needed to be postponed — one time the boy had a competition with his sports club, another time he had too much homework for the weekend and it was better not to distract him, another time he was unwell and not in the mood to see anyone. At first, Marina did not attach too much importance to these "excuses" — until she realized that she had not seen her own child in over a month. She tried appealing to her ex-husband's conscience, first demanding, then pleading with him to let her see her son. Although Oleg never outright refused to let them meet, he would each time cite what he considered a "very compelling" reason why it was not possible.
Having given up hope of reaching an agreement with her ex-husband on her own, Marina decided to take matters into her own hands. She went to the school Lev attended and approached him during one of his breaks to talk. The boy's reaction was mixed — on the one hand, he was glad to see his mother, but on the other, he did his best to end the conversation as quickly as possible, as though afraid of being caught doing something forbidden. At the end of their conversation, Marina asked him the questions that mattered most to her: whether her son loved her, and whether he wanted to see her. Crucially, Lev answered yes to both questions — after which Marina decided that she would not simply leave the situation as it stood. She turned to our law firm so that a qualified professional could help protect her interests and secure her the ability to see her child on a regular basis.
This story had a further twist on Oleg's side. Upon learning that Marina had come to Lev's school and spoken with him during a break, Oleg decided to petition the court for an order barring his ex-wife from approaching their minor son. He based his petition on the claim that the child himself did not want to see his mother, and that meetings with her had a harmful effect on his mental state.
Our firm's lawyer accordingly represented our client's interests in two court proceedings at once — in defending Marina's lawful right to regular meetings with her son, and in challenging the imposition of an order barring her from approaching the boy. The lawyer gathered and presented comprehensive evidence in the proceedings showing that Lev genuinely needed regular contact with his mother, and that being raised by his father alone could not substitute for being raised fully by both parents; that contact with his mother posed no threat whatsoever to Marina's son; and that Oleg's assurances about the harmfulness of the meetings were not backed by any serious grounds or evidence.
At the hearing, the court also heard Lev's own views on whether he wanted to see his mother regularly. Although the boy's statements about Marina were mixed, he made clear enough his wish to see his mother every week. Based on the evidence presented, the judge ruled to establish a schedule of contact between the minor child and his mother on weekends, every week. These meetings were to take place in the presence of Jugendamt staff who are trained psychologists, able to determine whether such meetings were causing any harm to the boy's inner wellbeing. What's more, at our initiative, a medical examination would later be carried out to help establish why the child had spoken about his mother in such an ambivalent way. If it were established that Marina had not caused any harm whatsoever to the boy's mental health, and that meetings with her posed no danger to him, the requirement for third parties to be present at such meetings would be lifted. Mother and son would then be able to meet within the established schedule without any third party present. At the same time, thanks to the efforts of our firm's lawyer, Oleg's petition to have Marina barred from approaching the child was dismissed.
Marina thanked us for the excellent work we had done, as our firm's professional legal defense helped her retain her lawful right to take part regularly in her own child's life and upbringing. We are convinced that preserving a constructive, good-faith relationship between former spouses who share children is one of the central tasks facing parents after a divorce. If, for whatever reason, you are unable to find a compromise on your own and need the legal support of an experienced professional, we invite you to turn to our law firm.
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