Questions and Answers on divorce
When can I file for divorce?
In individual cases of divorce by mutual consent, the family court judge also requires you to agree with your spouse on post-marital maintenance, the marital home and household effects and, if there are joint children, on the regulation of parental care, contact and child support.
If your spouse is unwilling to do so and does not agree to the divorce, the circumstances leading to the breakdown of the marriage must be explained in detail (e.g. prolonged interruption of contact, permanent turning to a new life partner).
After three years of separation, the family judge automatically assumes that the marriage is broken and pronounces the divorce.
In cases of domestic violence, the year of separation can be waived as a precondition for divorce in the so-called hardship divorce, and the marriage can be divorced immediately if the victim cannot reasonably be expected to continue the marriage.
Do we both have to have his/her own lawyer in the divorce proceedings?
The other spouse does not need to be represented by a lawyer in divorce proceedings if he or she does not wish to oppose the divorce petition and does not wish to file his or her own petitions; however, he or she should seek advice from a lawyer on his or her rights.
Can I file for divorce even if my partner is against the divorce?
Your partner has the right to disagree on whether the divorce is necessary at this point in time, or whether reconciliation should not be attempted again. He can also refuse consent in the divorce proceedings. However, he cannot permanently prevent your divorce. After three years of separation at the latest, the family court assumes that the preconditions for divorce have been met. As a rule, your partner will then no longer be able to oppose the divorce. It then no longer matters whether your partner believes that you owe him or her the continuation of the marriage because of certain misconduct in the past. For the divorce of the marriage, the only thing that matters is that the marriage has broken down.
What is the principle of disruption?
This is the case when the cohabitation of the spouses no longer continues and cannot be expected to be restored by the spouses.
Proof of failure is subject to different degrees of stringency depending on how long the spouses have been separated and whether the other spouse consents to the divorce or applies for divorce himself or herself.
Which of the spouses contributed more to the failure through their behaviour is not examined by the family judge in the divorce proceedings.
Is living apart a precondition for divorce?
In contrast, Russian divorce law, as well as the legal systems of the other successor states of the Soviet Union, does not require a special separation period, so that in the case of an existing relationship and a mutual desire for divorce, consideration can be given to choosing the divorce law that facilitates the divorce by means of a choice-of-law agreement.
For most married couples who have their common habitual residence in Germany, German divorce law applies, which provides for a separation of one year as a basic requirement for divorce.
The separation does not have to be formally established by a court or an authority as a starting point. However, separation is an important starting point for several areas of divorce law, in particular matrimonial property rights, and can have very direct effects, for example, when taking out a loan or rescheduling a debt.
It is therefore advisable to seek advice from a lawyer at an early stage in connection with the decision to separate, in order to be informed about the legal consequences of separation and divorce, including the effects on the insurance cover in the statutory health insurance of all family members.
What is important in the year of separation?
The legislator does not want to make it more difficult for spouses who are willing to divorce to maintain the separation year in the event of an attempt at reconciliation, so that this chance is not left unattempted. For this reason, an attempt at reconciliation only interrupts the separation year if it has lasted for more than three months.
Especially in families with children, where birthdays and holidays are celebrated together over a longer period of time after the separation, and during joint activities, caution is advised if the other spouse is still uncertain about the separation wish. In this case, in case of doubt, a separation agreement should contain rules on how, for example, holiday trips can be implemented in such a way that the children can be together with both parents without interrupting the parents' separate lives.
When do we start living apart?
The spouse who wishes to divorce and who has unilaterally declared his or her wish for separation to the other spouse must take this into account if the other spouse remains ambivalent towards the separation wish. Although it is not often the case in divorce proceedings that the other spouse questions the break-up of the marriage and the separation or its duration, it is not excluded and can lead to a failure of the divorce proceedings if, for example, the spouses have still appeared together in public for a long period of time.
If, in the case of a divorce by mutual consent, spouses claim that they have been separated for more than a year, even though this is actually not yet the case, they are in breach of their duty to tell the truth in court. However, experience has shown that the court will only question their statements once if there are special indications, e.g. if the spouses are still registered at the same address at the time of the court hearing.
What happens if I file for divorce earlier?
The court hearing for divorce is only scheduled when the pension settlement can also be decided as a consequence of a divorce; the preparation of the pension equalization regularly takes several months. If, however, the divorce petition is filed a few months after the separation, it can be expected that the court will quickly determine the date and reject the divorce petition with costs.
Can I file the divorce petition earlier?
It is not necessary to wait for the separation year if there is a hardship case.
The spouse must plead misconduct on the part of the other which is so serious that it is unreasonable to expect the "formal bond" of marriage to be maintained until the end of the separation year. The other party accused of misconduct cannot himself/herself claim a hardship divorce.
Examples of a hardship case are:
serious/repeated maltreatment of one spouse by the other - relatively strict requirements are often set here, a one-off "push" is usually not enough.
Behaviour that violates sexual self-determination can be a case of hardship.
If a spouse is expecting a child with a new partner, rules on parentage can play a role; if the wife is expecting a child with a new partner, it can play a role that the husband is initially considered the legal father.
If the husband soon becomes a father again with a new partner, the still existing marriage has no influence on the parentage relationships. However, he can invoke the fact that he must be given the opportunity to divorce in time so that the new marriage can be concluded before the birth of his child.
The abuse of alcohol or drugs can give cause for a case of hardship. However, it must be taken into account that addiction is not in itself an accusable behaviour because it is classified as a disease.
When am I legally divorced?
After the divorce decree becomes final, the court shall issue a certificate of the divorce decree with a notation, which shall be used in legal transactions as proof of the divorce. If the other spouse is also represented by a lawyer in the divorce proceedings, a mutual waiver of appeal against the divorce decree can be declared in the court hearing, so that it becomes legally binding immediately and the expiry of the appeal period does not have to be waited for.
Rechtsanwalt Wolfgang Sattler, Fachanwalt für Familienrecht und Fachanwalt für Sozialrecht
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