Married life is not always a garden of roses. It requires a lot of sacrifice and unfortunately it does not always lead to “until death do us part”. Divorce in this case becomes inevitable. Today, we examine divorce procedures in Germany.
Who can divorce in Germany
In Germany divorce proceedings are governed by the Civil Code (Bürgerliches Gesetzbuch). According to section 606a of the German Civil Code, German courts have jurisdiction over matrimonial matters where: One spouse is a German national or if both are foreign nationals resident in Germany.
This is interpreted to mean anyone (spouses) can obtain divorce from German courts regardless of their nationality just like Germans can possibly divorce abroad. They however have to have residence in Germany, and certain marriage procedures ought to have been followed. This gives 3 different scenarios:
Both partners live in Germany
In this case, regardless of the partners’ nationality or where they got married, the divorce can be handled by the German court. The divorce follows German law meaning the process can only start after the couple has been separated for at least 12months.
The couple however has the option to decide to divorce using the law of the spouse’s origin. For example a Kenyan couple that got married in Kenya but has been living in Germany, can decide whether to divorce using German or Kenyan law. Or a Kenyan-Turkish couple living in Germany can choose to use Kenyan, Turkish or German law to divorce.
Using foreign law can help fasten the divorce process as most countries do not require the one year separation before divorce proceedings can begin.
Only one partner lives in Germany
In this case, the divorce can be handled by a German family court only if:
- the last joint residence of the couple was in Germany
- both partners are German nationals (can be by birth or naturalization)
- the German partner living in Germany has been in Germany for at least 6 months
- the foreign partner living in Germany has been in Germany for at least 1 year
Neither of the two lives in Germany
In this case, at least one of the partners has to be a German national for the divorce to go through the German law courts.
Grounds for Divorce
There is only one ground for divorce recognised by German Law – breakdown of the marriage! A marriage is considered to have broken down if the parties are no longer cohabiting and it is not expected that they will resume matrimonial cohabitation.
According to European Justice an irrebuttable presumption that the marriage has broken down arises if the spouses have lived apart for at least a year, and both petition for divorce or the respondent consents to the divorce.
In circumstances where the couple have lived separately for more than three years such a marriage is considered to have broken down regardless of what positions the couple take during divorce proceedings.
Nevertheless, there are special cases where divorce can be allowed within 12 months. These are called hardship divorces and apply in cases of violence or other unreasonable behaviour. Sometimes however, proving unreasonable behaviour might take longer than waiting for the 12 months of separation.
Starting Divorce Proceedings
Applications for a divorce can be lodged at the district or family court where the couple have their joint residence. Both spouses must be represented by a lawyer. This is because unrepresented people cannot make a petition in court according to German law. However, if both parties agree to the divorce then only one lawyer need be present.
Duration of Divorce Proceedings
The length of the period of the divorce proceedings will be majorly determined by a number of circumstances i.e. if the divorce is uncontested (if contested, it takes longer), and presence of a lawyer (presence of a lawyer shortens the period of a petition on a ruling).
While this information may be of help, it is advisable to obtain proper legal advice, always.