Divorce is a stressful, arduous affair that can either be managed amicably or end in a dispute.

  1. Before divorce: The separation year
  2. The divorce process in Germany
  3. International divorce process
  4. Timeframe for divorce proceedings
  5. Divorce Costs
  6. Conclusion

1. Before divorce: The separation year

Usually, spouses want divorce proceedings to be over as quickly as possible. Once they get to this point, they subjectively feel that the marriage has already failed.

However, immediate divorce is not an option in Germany, with a few exceptions (more on this later). Family courts can only dissolve a marriage if one spouse files for divorce and the marriage is legally deemed to have failed (Section 1565 of the German Civil Code – Bürgerliches Gesetzbuch BGB). This is generally the case when matrimonial cohabitation has irreparably broken down.

A key marker for the definitive end of a domestic partnership is the separation of the couple: the spouses must have lived apart for a certain period of time, not just momentarily.

Duration of the separation year

The necessary period of separation depends on whether both spouses or only one spouse want a divorce:

  • A judge will consider a marriage to have failed after one year of separation if both spouses file for divorce, or if one spouse files for divorce and the other agrees.
  • However, if one spouse does not want to divorce, the judge usually sees this as an opportunity for reconciliation and will not yet agree to dissolve the marriage. In such cases, family courts will generally only consider the marriage to have definitively failed after three years of separation.

However, the marriage may have already definitively failed in such cases. It is then up to the spouse who wants the divorce to prove this by demonstrating that reconciliation is clearly no longer an option before the three-year separation period has expired. The physical separation of the spouses for at least one year is then considered a strong indication.

The separation year is intended to give the couple time to reconsider their marriage, and perhaps find their way back to each other.

A couple has clearly separated when one spouse moves out. However, living apart does not necessarily mean that one spouse has to move out of the shared home. The spouses can continue to live in the same house or apartment, but must divide the rooms among themselves and manifestly no longer be living in matrimony (“separation from bed and board”).

Example: Husband M and wife F consider their marriage to have failed. M will be sleeping in the conservatory from now on. The remaining rooms are shared by both. F continues to manage the cooking, family laundry, and cleaning, while M does manual work in the house and garden. They file for divorce after one year.

In this example, M and F have divided the house between them and therefore live separately at home. Their shared use of the kitchen and bathroom does not detract from this, but the couple continue to run the household together, which suggests that the marriage continues to exist. The year therefore does not count as a separation year, and divorce is not possible.

Waiver of the separation year in the event of a hardship decision

The separation year can sometimes be unbearable for one or both spouses. The judge can then enforce an immediate hardship decision at an earlier stage, and waive the separation year.

A hardship decision can only be considered if the continuance of the marriage is intolerable for one of the spouses for reasons that lie in the person of the other spouse. Such reasons may include physical injury, abusive language, or extramarital relationships.

Example: Wife F and husband M want to divorce and move apart. Shortly afterwards, F becomes pregnant by another man. M now asserts that he cannot and does not want to continue the marriage under these circumstances.

The Higher Regional Court of Frankfurt am Main (1 WF 89/05) ruled in his favor and allowed a hardship decision. The husband could not be expected to continue the marriage if the wife was pregnant by another man.

The court alone is responsible for recognizing the case of hardship. The judge examines and independently assesses the circumstances of the individual case. Investigating a hardship case is more time-consuming and difficult for the court than verifying a separation year, which is why judges are sometimes reluctant to enforce a hardship decision.

2. The divorce process in Germany

Filing for divorce

While marriage takes place in a registry office, a marriage can only be dissolved by the family court. There is no option for spouses to come to a purely private agreement on a divorce.

The divorce proceedings therefore begin with the filing of the divorce petition with the family court. The petition can be filed at the earliest at the end of the separation year. If the petition is filed earlier, it will in most cases be rejected with costs. The situation is of course different in the case of a hardship decision.

Which of the spouses files the petition (“petitioner”) is immaterial, but the petitioner can decide on the further course of the proceedings, for example, by withdrawing the petition.

Representation by an attorney is mandatory. The petitioner must therefore instruct a divorce attorney to file the petition.

Divorce process in Germany

Payment of court fees

The petitioner must pay the court fees, which are calculated according to the spouses’ income, before the court becomes active. Initially, the petitioner alone must bear the court fees, and the other spouse must reimburse their half after the divorce. The petitioner may be eligible for legal aid if they have a low income.

The court serves the petition to the spouse

Once the court fees have been paid, the court serves the divorce petition to the other spouse (“ex officio”). Even if service is effected ex officio, the petitioner must provide a postal address for the other spouse. This can only be waived if the spouse is absolutely untraceable. The court then serves the petition “publicly” and the proceedings continue without the involvement of the other spouse.

Example: Wife F wants to divorce her husband M. They have been separated for a year. M moved to Russia shortly after the separation. F had asked two relatives of M where he was living, but without success, and filed without stating M’s address. The Higher Regional Court considered F’s efforts to be insufficient: F should have asked other relatives and acquaintances of M for help. Service by publication is only possible in exceptional cases (Higher Regional Court of Hamm; Ref: II-2 WF 157/12).

The other spouse can now reject the petition, agree to it or file their own divorce petition through their attorney. Filing a separate divorce petition is advantageous, as the petitioner can then no longer decide on the proceedings alone.

Example: Husband M files for divorce. Wife F does wants to end the marriage anyway, and agrees to the divorce. M and F now wait several months for a court hearing. Shortly before the hearing, M changes his mind and withdraws the petition. F still wants a divorce, but is bound by M’s decision. All she can do is to file a new petition and wait a further several months for a court hearing. She also has to pay the advance on the court fees herself. If F had also filed for divorce, M could not have unilaterally canceled the court hearing.

Completion of the pension rights equalization questionnaire

The court sends both spouses a pension rights equalization questionnaire, which is used to calculate the spouses’ pension entitlements. Pension rights equalization is a general requirement, and is only unnecessary in the following cases:

  • The spouses decided in advance by notarized contract of marriage to exclude pension rights equalization.
  • The marriage lasted less than three years (in this case, pension rights equalization can be applied for on a voluntary basis).
  • The pension rights equalization would be grossly unfair (e.g., because the equalization beneficiary never paid alimony during the marriage, although they were obliged to do so).
  • Both spouses are represented by an attorney, and agree to waive the pension rights equalization.

Omitting pension rights equalization significantly speeds up the proceedings, usually by about three months.

Divorce hearing in court

Once the pension insurance calculations are available the family court will schedule a divorce hearing, which both spouses are generally required to attend. The judge only asks a few questions about the spouses’ separation and income, and then dissolve the marriage by means of a divorce decree.

If the spouses waive their right to appeal against the decree (through an attorney!), the divorce is effective immediately. Otherwise, it takes effect after one month unless an appeal is lodged (the next higher court would deal with the divorce again).

What still needs to be settled after the divorce?

As part of the divorce proceedings, spouses can request the court to also rule on the post-marital consequences (“consequential affairs”). Here too, the spouses can reach an out-of-court settlement and thus speed up the proceedings.

Consequential affairs may include:

  • child maintenance and post-marital alimony
  • child custody (custody and access rights for joint children)
  • matrimonial regime (spouses’ assets)
  • household effects (division of household effects such as furniture and kitchen appliances)

3. International divorce process

In an international divorce, the question arises as to whether the marriage is being dissolved under German or under foreign law. Determining applicable law is essential, as foreign divorce law sometimes differs greatly from German divorce law.

A divorce is deemed international if

  • one or both spouses live abroad or
  • one or both spouses do not have German citizenship.

However, whether the marriage was concluded under German or foreign law is immaterial.

In the first place, the spouses can decide for themselves which law applies for an international divorce by concluding a contract of marriage. If the spouses cannot reach agreement, the applicable divorce law is determined by the so-called Rome III Regulation.

The international divorce process is largely determined by applicable law. If the marriage is to be dissolved under German law, there are no procedural differences to a “normal” divorce. In individual cases, however, information must be obtained from abroad, which, depending on the country, can delay the process.

The question of which law applies is key. The consequences, process, and procedure of the divorce can vary considerably depending on this aspect. Especially in the case of an international divorce, it is therefore worth consulting a family law specialist at an early stage in order to at least clarify this important issue. All further considerations can be based on this.

In an international context, the recognition of the divorce should also be taken into consideration:

  • A divorce through German courts is recognized in all EU countries except Denmark. In other countries, it may be necessary to go to the local authorities or courts in order to have a German divorce recognized. Bilateral recognition agreements exist in some cases, but in others the divorce must be repeated in accordance with national law.
  • Divorce by a foreign court must first be recognized in Germany, which does not require any formal procedure for other EU countries (except Denmark). In other cases, recognition is granted by the state justice administration. However, this procedure can generally be waived if both spouses are citizens of the country of the court that granted the divorce. This is referred to as a so-called home-country divorce.

4. Timeframe for divorce proceedings

German divorce proceedings can take a total of 6-12 months from the time of filing. In exceptional cases, if the pension rights equalization can be waived, divorce is possible within 3-4 months. However, the proceedings can take considerably longer depending on how busy the court is.

The length of the proceedings is also significantly influenced by whether the spouses agree on most issues of the divorce (divorce by mutual consent) or not (contested divorce). The procedure is basically the same, but the more spouses disagree on questions such as surplus equalization, alimony, the household, childcare, or the matrimonial home, etc., the greater the need for clarification. This takes time, both out of court and in the preparation of the court hearing through statements by the attorneys.

Each step of the procedure may require the following amount of time:

  1. Once the divorce petition has been filed, the court determines the value of the proceedings. It then requests advance payment on court fees approximately two weeks after the divorce petition has been filed.
  2. If you have applied for legal aid, a decision on this is generally made together with the decision on your divorce petition. This does not usually result in delays.
  3. The divorce petition is usually served to the spouse a few days after the court fees have been paid. The spouse then has three weeks to respond.
  4. Once the pension rights equalization questionnaire has been filled out, data is obtained from the pension providers. The German Pension Insurance Association (Deutsche Rentenversicherung) requires about three months to provide this data. From experience, private pension providers are faster.
  5. The judge usually calculates the pension rights equalization after receiving the information, and then informs the parties of this calculation in the summons.
  6. There must be at least one month between the summons and the court hearing. This is intended to give the parties time to make subsequent petitions (alimony, surplus equalization, etc.). These petitions are decided on jointly at the divorce hearing.
    How much time there is between the summons and the court hearing depends largely on the respective judge’s workload. Roughly speaking, you can expect it to take two months.
  7. The proceedings can also take considerably longer if extensive follow-up petitions are submitted. Contested divorces usually take longer for this reason.
  8. The divorce hearing in court is a short affair that usually lasts no longer than 20 minutes. Of course, it can take much longer in a contested divorce

5. Divorce costs

In Germany, divorce costs are based on statutory provisions and are essentially calculated according to the spouses’ income and assets. Divorce is only possible in court, and the petition must be filed by a lawyer, which incurs court and legal fees.

Legal fees

The amount of the legal fees is set out in the German Lawyers’ Compensation Act (RVG). A higher fee can be agreed, however, either according to a fixed hourly rate or as a flat fee. It is not possible to charge less than the fees stipulated in the RVG.

The costs of the divorce attorney must generally be paid by the spouse who hires the attorney. If both ex-partners are represented by an attorney, each must pay their own attorney fees. However, if only one attorney is involved in the divorce proceedings as part of a divorce by mutual consent, their costs are usually split between the spouses.

Court fees

As with the attorney fees, the court fees in divorce proceedings are based on the value of the proceedings, which in turn depends primarily on the spouses’ income and assets.

The court fees are usually borne equally by both spouses. Nevertheless, the divorce petitioner must advance the court fees to the competent court, but they will usually be reimbursed half the costs by their ex-partner during the course of the proceedings.

The cause of the divorce and the reason for the separation above all are immaterial in this regard. Circumstances such as adultery or infidelity also do not affect the principle of an equal division of costs.

Savings opportunities in the event of divorce

A divorce in which only one spouse is represented by an attorney and the other agrees to the divorce is the least expensive option. The spouses can then share the legal costs between them.

In many cases, however, spouses have no choice but to seek attorney representation and to pay for this representation themselves, because divorce by mutual consent presupposes that the spouses agree on all essential points at the time of the divorce, such as custody and visitation rights, child maintenance and alimony, asset allocation, etc.

You can calculate the expected costs of a divorce in your specific life situation using our free divorce costs calculator:

Those with limited financial resources may be entitled to state legal aid. For this purpose, a declaration of personal and financial circumstances must be completed and a corresponding application must be submitted to the court. It is possible to have the financial burden eased by arranging for payment in installments, or to have the costs covered in full without repayment.

6. Conclusion

  • Divorce is only possible if both spouses want a divorce and have been separated for one year, or at least one spouse wants a divorce and the couple has been separated for three years.
  • The separation year can only be waived (“quick divorce”) in rare cases of hardship.
  • The divorce process begins with filing the divorce petition to the local court and payment of the court fees.
  • The court serves the petition to the other spouse.
  • A pension rights equalization is then carried out, which can only be waived in exceptional cases.
  • Finally, a court hearing is scheduled at which the judge divorces the spouses.
  • The procedure takes 3-12 months on average. The pension rights equalization usually takes up the most time.
  • Court and attorney fees must be paid when divorcing in Germany. Both depend primarily on the spouses’ income and assets.