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Divorce in Germany: Costs, asset division, prenuptial agreements, international cases and child custody

Divorce systems in Germany from costs to asset divisions and spousal rights

Guides to living in Germany. Divorce in Germany. The divorce process in Germany is relatively simple but can become complicated when additional aspects come into play, for example, if you have children together or own shared property. Here are factors to consider when getting a divorce in Germany:

It is highly advised you consult with a lawyer who specialises in German family law to navigate the numerous legal aspects a divorce entails.

Married individuals may get divorced in Germany so long as one partner has German citizenship or residency. This is the case even in situations where spouses did not originally get married in Germany.

Here’s a brief overview of some things you should think about:

Divorce in Germany: Reasons and Procedure

The possibility of divorce in Germany is provided if the marriage has failed, this being the case where there is no conjugal partnership anymore, and no possibility of the partnership to be restored.

One year of separation is required in the event both partners want a divorce. If one partner wants a divorce, the law requires proof they have lived separately for three years. However, in some instances exceptions can be made, for example the case where one needs to wait an extra year because staying would cause hardship to one of the partners.

If you’re not German, there is also the possibility of having your case heard according to the laws that apply in your home country- for instance where there may be no requirement to separate for at least a year.

If requested, German courts will occasionally allow for the use of foreign law in divorce cases.

Divorce costs

Divorce cost in Germany vary on multiple factors, including the so-called “value of the divorce”, and if it is contested or amicable.

When dealing with contested cases, lawyers may be involved in resolving disputes regarding assets which will involve more work, resulting in higher costs.

The value of divorce is a legal necessity that has to be worked out to determine the cost the lawyer and court will charge. It is based on these factors:

  • Net income of the partners
  • Number of children the partners have
  • How long the partners have been married
  • Value of assets held by the partners
  • Whether the couple have their respective pension entitlements divided fairly between them

Asset division: Business/Personal

One of the critical stages in divorce cases, is the division of both business and personal assets between the two spouses.

Personal assets include:

  • Marital property
  • pension plans
  • stock options
  • Properties acquired through joint accounts or signed by both spouses.

Debts acquired during the marriage will also be examined in the post-divorce division.

For entrepreneurs, protecting the business assets should be priority when divorcing in Germany. A marriage contract (prenup) provides a clear path in these cases. Without an agreement, you run the risk of your assets being divided equally between spouses in the event of a marriage ending. Such a division can leave the entrepreneur open to experiencing major disruption, and potentially losing their business.

Division of property can be complicated especially in the case of the marital home, should the property be paid for by both spouses or under joint account. In such cases, it is best if the spouses can reach an agreement on how to resolve the issue. Other solutions include:

  • Selling the property
  • Buying out the other spouse
  • Dividing property
  • Transferring ownership to children

Prenuptial agreements

Marriage contracts or prenuptial agreements are becoming more common in Germany and they can be drawn up before or during a marriage. These agreements to be legally binding need to be signed in the presence of a notary.

Prenuptial agreements in Germany are designed to outline what happens to both personal and business assets acquired during the marriage or in the event of death. These agreements should be used as an insurance policy and considered by those hopping to get married.

Drawing up a fair prenup at the beginning of the marriage lowers the risk of a potentially bitter divorce.

There are rules to what can and cannot be provided for in a prenup. For example, spousal maintenance cannot be denied during the separation period but can be waived post-divorce. The agreement may however be deemed invalid if the partner rejecting the maintenance is not in a financial position to be able to dismiss that support.

Prenups may not be used as a way of getting out of paying child support and court may intervene when the prenup is seen as one-sided or unfair.

International cases: Implications for residence permits

In an international marriage, one partner’s residence permit is linked to their marriage. Such a case can be of great concern, but under § 31 German Residence Act (Aufenthaltsgesetz) the individual is allow to have an extra year of residency in Germany following a divorce. This additional year applies in cases where the couple has been married for at least three years in Germany.

During the extended year, the partner is expected to find reason to be granted a residence permit to remain in Germany. For instance, finding skilled work and base their residence permit application on that status.

The situation is more complicated if the marriage lasted less than 3 years. In this case, the residence permit is based solely on their marriage, they will likely be granted a one-year extension. Most likely situations where it will be granted include:

  • Domestic abuse or violence revealed to be a factor in the marriage
  • If the couple have a child together and has German citizenship.
  • If partner gains visa extension based on employment skills or as a vocational trainee

German authorities will be more likely to look favourable on a case where the person can support themselves.

Child custody

Normally joint custody is awarded in divorce cases in Germany, however, the guiding principle in the matter is what is in the “best interest of the child”. Even with the parents living separately, Joint custody means essential decisions regarding the child must be made by mutual agreement.

Sole custody may be granted in the following circumstances:

  • One partner relinquishes custody
  • One partner sues the other for sole custody

Voluntary relinquishment of custody happens when one parent feels it is best for the child, or is overwhelmed by the new situation. That parent applies to the family court to transfer full custody as long as the other parent is in agreement.

In other circumstances, one parent might feel joint custody is harmful to the child’s well being. Such cases are brought to court where they will examine whether awarding sole custody is in the child’s interest. These are:

  • Suitability of the parent to raise child
  • Child’s attachment to parent
  • Respect for the will of the child
  • Principles of support and continuity

The child’s best interests are endangered, for example, if there is proof of violence or neglect by one parent. 

The issue of child custody becomes essential, when one parent seeks to move the child to another location, for instance to a country abroad. The parents or parent in custody are authorised to decide where the child is to live. It is best advised to approach the matter in an amicable manner with the child’s best interests in mind.