Family law in Germany: overview

A Q&A guide to family law in Germany.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

Dr. Daniela Kreidler-Pleus, Anwaltskanzlei Dr. Kreidler-Pleus und Kollegen
Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

The primary sources of law are as follows:

  • Statutes. The main statutes include:

    • sections 1297 to 1921 of the German Civil Code (Bürgerliches Gesetzbuch) (BGB);

    • Law on the Balance of Pension Entitlements (Versorgungsausgleichsgesetz);

    • sections 111 to 270 of the Law Concerning the Proceedings in Family Law Cases and Cases of Non-contentious Matters (Gesetz über das Verfahren in Familiensachen und in Angelegenheiten der freiwilligen Gerichtsbarkeit) (FamFG);

    • Law on Civil Partnerships (Lebenspartnerschaftsgesetz) (LPartG).

  • Decisions or case law of the regional Courts of Appeal (Oberlandesgerichte) (OLG).

  • Decisions of the Federal Supreme Court of Justice (Bundesgerichtshof) (BGH).

  • Decisions of the Federal Constitutional Court (Bundesverfassungsgericht) (BVerfG).

  • Directing lines or guidelines of the regional Court of Appeal.

  • Düsseldorf scale (see Question 4).

Court system

Family law cases are defined in section 111 of the FamFG. Family law dispute cases are defined in section 112 of the FamFG.

The competent court of first instance is the District Court (Amtsgericht) (section 23a, Law on the System of Judicature) (GVG). Special sections exist for family cases in a broader sense. Only one judge decides on family law matters. Court hearings are generally held in private (section 170, GVG). The court may decide to hold the proceedings in public but only with the consent of both parties.

Remedies in family cases go to the regional Courts of Appeal (Oberlandesgericht) (section 119 I a and b, GVG). Three judges together must determine the issues.

Some family law cases can be appealed to the Supreme Court of Justice (Bundesgerichtshof), (section 133, GVG).

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

To start proceedings, an application must be initiated at the local competent family court. Court fees must be included with the application.

Divorce

The applicant must be represented by a lawyer when initiating divorce proceedings (section 114, FamFG). The written application must include the following information:

  • Name and address of the parties.

  • Name and address of the competent court.

  • Application of divorce.

  • Grounds for divorce.

  • Name and date of birth of the common minor children and their habitual residence.

  • Declaration of the parents that they agree on the care, visitation rights and maintenance for the minor children, if such agreement exists.

  • Declaration that the parties agree on spousal maintenance, marital home and household effects, if such agreement exists.

  • Information on whether other applications are pending concerning the family, where both spouses are involved.

  • Signature of the lawyer.

  • The number of required transcripts.

  • Marriage certificate and the birth certificates of the common minor children.

Property

In proceedings concerning the balance of accrued gains and maintenance, an application must be initiated at the local competent family court. As long as divorce proceedings are pending, the local competent court is exclusively the court where the divorce proceedings were initiated. As a rule, the parties must be represented by a lawyer (section 115, FamFG).

See Question 9.

Children

Legal proceedings concerning the care of children or visitation rights usually start with an application at the local competent family court. As long as divorce proceedings are pending, the local competent court is exclusively the court where the divorce proceedings were initiated. In proceedings concerning care and visitation rights, the parties do not have to be represented by a lawyer. The court must appoint a guardian, if this is necessary, for the child to exercise his or her rights (section 158, FamFG).

The parents and the youth welfare office must be heard. The court must hear a child aged 14 years old and above. If the child is under 14 years old, he must be heard if either:

  • The opinion, relationships or will of the child is important for the decision.

  • There are other reasons to hear the child.

As a rule, even very young children are heard by the court, starting at about the age of four or five years old.

In proceedings concerning care and visitation rights, the court has an obligation to reach an amicable arrangement.

See Question 4 in the case of conflicts of law where the issue of the jurisdiction of the German courts is in issue.

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

German law follows the concept of habitual residence, not domicile.

Habitual residence follows the definition in the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the law applicable in Respect of the Protection of Minors and the Hague Convention on Child Protection.

A person is a habitual resident of a country or state where that person has the most social and economic relations, that is, the person's centre of life (BGH FamRZ 2002, 1182 f.). The stay must be of certain duration and more than a simple stay. In addition, further family and professional relationships, which support the argument that this is the person's centre of life, are necessary (OLGMünchen, 30.06.2005, No. 5, IPRspr. 2005, No. 198, 543-545).

If there is more than one residence, the habitual residence is where the person mostly stays overnight. Habitual residence means factual integration in the social environment for a certain period of time. The intention to establish an integration is not necessary (BGH FamRZ 81, 135 f.; 93, 798, 800). Registration at the registration office is only an indication (BGH FamRZ 95, 1135; 96, 171 f.).

The intention to establish a residence is necessary. A person who moves to a new place with the intention to stay there immediately has a new habitual residence at this new location. A temporary stay of fewer than three weeks is not sufficient to establish residence (BGH FamRZ 95, 728 f). This intention is especially important if the person is absent for a longer period of time, such as for professional reasons. If the person intends to come back, that person must keep the habitual residence (BGH FamRZ 93, 798 f.).

Unintended or involuntary moves do not establish a new habitual residence (OLG Köln FamRZ 2003, 1124). They can only establish a new habitual residence if the move back is unforeseeable or the stay is a very long one (OLG Köln FamRZ 2003, 1124).

The habitual residence of children is where their lives are centred (OLG Hamm FamRZ 91, 1466). This can differ from the residence of the parent who has care of the children (BGH FamRZ 97, 1070). As long as the child is young, the habitual residence is the same as that of the person who has child care. When the child is older, the social relations to family, friends and school, become increasingly important. If the stay is only temporary, habitual residence depends on the duration and the view of the child. Some courts assume that the residence becomes habitual after six months (BGHZ 78, 293, 301; Köln FamRZ 91, 363 f.; Hamm FamRZ 91, 1346; Bamberg FamRZ 96, 1224 f.).

In the case of child abduction, the habitual residence of the child can change, even if the change of residence was against the law, if the child's centre of life has changed (BGH, NJW 1981, 520 ff.; EuGH, FamRBint 3, 2009, 53).

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

German law follows, as a rule, the principle of priority. Germany is a signatory to most of the international conventions and in particular the Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation), which provides rules for priority.

With regard to other international conventions, for example, the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 in the form of 29 November 1996 (EUGVÜ), the European Court refers to the lex fori (law of the forum) concerning the question of pending actions.

If there is no provision in the international conventions, pending actions according to German law mean that the action must be filed. It is only filed if the service of the action to the other party has taken place. It is not sufficient that the action is presented to the court. This very often leads to a disadvantage for the German jurisdiction because many other countries do not require service of the action, only presentation to the court.

If it is not clear which court was first in time, the consequences depend on whether the Brussels Regulations are applicable, or other international conventions that do not offer rules for priority, or no conventions are applicable.

The later seised court will temporarily suspend the proceedings until the jurisdiction is clear (Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation)). If the first seised court declares that it has jurisdiction, the German court will declare that it has no jurisdiction. If the first seised court declares that it has no jurisdiction, the second seised court in Germany proceeds. If there is no decision from the first seised court, or the German court does not have notice of such a decision, the German court will temporarily suspend the proceedings. Whether the German court can continue depends on the question of the recognition of the decision of the first seised court. In all other cases, the second seised court will temporarily suspend the decision (section 148, ZPO).

If the principle of priority is not respected by the foreign court, the consequences will depend on whether an international convention or regulation is applicable. Under Article 21 of the Brussels II Regulation, for example, the decision of a foreign court will be recognised and enforced even if the foreign court makes a decision without respecting the principle of priority.

If there is no international regulation or convention, and the foreign court makes a decision without respecting German priority, the judgment will not be recognised (section 109 I No. 3, FamFG).

The prior decision of a foreign court will not be respected in Germany if this leads to unreasonable prejudice for the applicant in Germany. For example, if the foreign court needs a disproportionately long time to decide without good reasons (BGH NJW 83, 1269, AG Leverkusen, FamRZ 2003, 41).

If the German court makes a decision without respecting the foreign priority, the judgment will, however, be valid.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

The freedom to enter into marriage contracts (pre- and post-nuptial agreements) complies with the German tradition of law and can be traced back to the Middle Ages. An agreement must be concluded in a notary public's office with both parties present. The parties to an agreement do not have to be represented by legal counsel before or during the signing of the agreement. Full disclosure of the assets of the parties before signing is not required.

The notary does not represent either of the parties, but is an independent, impartial consultant for the parties involved. The notary must:

  • Explore the parties' intent.

  • Clarify the facts in the case.

  • Instruct the parties on the legal consequences of the transaction.

  • Reflect the parties' statements clearly and unambiguously in the transcript.

  • Read the entire transcript to the parties.

The marriage contract is a contract in which the married couple settle their relationship on their status of property. Status of property is to be understood in a sense that the legal status of property can be changed or varied (section 1408 I, BGB). There are three different categories of legal status in which property can be held:

  • Community of accrued gains (Zugewinngemeinschaft).

  • Separation of property.

  • Community of property.

The community of accrued gains is the default statutory regime of matrimonial property, that is, if the spouses do not agree to choose another one. The married couple can exclude the balance of the pension entitlements in a marriage contract (sections 1408 II, BGB, 6 I 2 VersAusglG). All arrangements concerning the marriage of a couple for the regulation of general matrimonial questions, the matrimonial property rights and the consequences of a divorce, can be made in a marriage contract. The German courts have jurisdiction to set aside those agreements (or aspects of them) in certain circumstances.

Case law and jurisprudence has fundamentally changed since the Federal Constitutional Court (Bundesverfassungsgericht) and the High Court of Justice (Bundesgerichtshof) changed their jurisdiction in 2001 and 2004 (BVerfG 06.02.2001, BGH 29.03.2001).

These two decisions are diametrically opposed to the previous rulings where it was held that a court cannot interfere with the freedom of a husband and wife to contract according to their wishes. They gave new criteria according to which marriage contracts are valid or not. The main principle is that a marriage contract cannot undermine the proper application of the law. If the marriage contract starts with unequal negotiating positions (for example, pregnancy) or leads to an obviously unilateral and unjustified burden for one party, it may be seen as undermining the proper application of the law.

When considering the marriage contract two dates are significant:

  • Date of the marriage contract.

  • Date of the divorce.

If the contract has undermined the proper application of law at the date the parties concluded it because it was against morals (contra bonos mores), the whole marriage contract is invalid (section 138, BGB).

If the facts have changed in the time between the marriage and the divorce, and at the time of the divorce the marriage contract or specific provisions within the contract undermine the proper application of the law, then only these specific provisions must be adapted to the new situation. The other provisions remain valid (section 242, BGB).

The most important recent decisions of the High Court of Justice (Bundesgerichtshof) are as follows:

  • BGH 17.10.2007 – XII ZR 96/05: the waiver of the balance of accrued gains is not invalid because one spouse was self-employed during the marriage, which both parties had expected when concluding the agreement, and, therefore, had not gained pension entitlements; therefore no balance of pension entitlements took place.

  • BGH 09.07.2008 – XII ZR 6/07 and BGH 18.03.2009 – XII ZB 94/06: the exclusion of the balance of pension entitlements is invalid if both parties declare that the wife would retire from professional life to take care for the children and could, therefore, not gain her own pension entitlements. If the agreement was concluded when the wife was pregnant in the ninth month and first saw the draft at the notary's office, the whole agreement could be invalid.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

There are no special proceedings for the recognition of foreign marriages. However, the question of the validity of a marriage can be a preliminary question for other decisions, for example, taxes, family registration and naming.

This preliminary question must be answered by the competent administration or authority. As a rule, Germany acknowledges the validity of foreign marriages if the laws (rules) of the foreign country (home country or country of marriage) concerning marriage were complied with. In addition, fiancés must fulfil the requirements of their home country or the place where they were married for a marriage (for example, unmarried, minimum age, no relation by blood) (Article 11 I and 13 II, EGBGB). This means that German law accepts only:

  • Religious marriages.

  • Nevada marriages. It is not unusual for German nationals to travel to Nevada (especially Las Vegas) to get married. Germany accepts these marriages if the conditions and formalities for the validity of the marriage are fulfilled, according to the lex patriae of the fiancés and the state of Nevada.

  • Common law marriages according to North American law.

  • Registered Soviet Union marriages.

  • Imam marriages according to Turkish law.

  • Marriages that follow the law of the fiancés' home country or the country where the marriage took place.

Divorces/annulment

Foreign divorces must be recognised through a formal recognition application to be effective (section 107 ff., FamFG). However, some foreign divorces are recognised by law (ipso jure) such as:

  • Where Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation) applies (divorces that took place after 1 March 2001 within the European Union, except in Denmark). Formal recognition is unnecessary unless there are exceptions (Articles 22 and 23, Brussels II Regulation).

  • Cases where both parties are members of the state whose court or authority granted the divorce (section 107 I 2, FamFG).

In all other cases, a regional Court of Appeal or a Landesjustizverwaltung must declare the preconditions for recognition. The preconditions can be found in bilateral agreements (Switzerland and Tunisia).

Recognition does not take place where (section 109 I 1, FamFG):

  • The divorce is not final.

  • The foreign courts had no jurisdiction according to German law (section 109 I 1, FamFG).

  • The divorce was given in default of the respondent's appearance because he was not served with the document that instituted the proceedings, or with an equivalent document, in sufficient time or manner to enable him to arrange his defence, unless it is determined that the respondent has accepted the judgment unequivocally (section 109 I 2, FamFG).

  • The decision is irreconcilable with a German judgment or a previous foreign judgment, which must be recognised in Germany, or if the proceedings are incompatible with previous pending German proceedings (section 109 I 3, FamFG).

  • Recognition of the divorce would lead to a result that is incompatible with the leading principles of German law (ordre public) (section 109 I 4, FamFG).

Civil partnerships

Brussels II Regulation does not apply to civil partnerships. The current position is that marriage between two men or women is not acknowledged in Germany. Germany treats these marriages as civil partnerships.

If no other international conventions and agreements apply, civil partnerships do not need to be recognised in a special proceeding. On the contrary, the effects come into force ipso iure if the civil partnership is comparable to the German civil partnership. If the rules of the foreign civil partnership go further than the German law, the rules of German law apply to the foreign civil partnership (section 17 I 1, Introductory Act to the German Civil Code (EGBGB)).

Even if there is no necessity to start proceedings to recognise the civil partnership, it is possible to apply for a statement that a foreign civil partnership is acknowledged in Germany (section 108 II 2, in connection with section 107 IX, FamFG analagous).

The recognition of the dissolution of a civil partnership takes place ipso iure (section 108, FamFG).

The recognition of the dissolution of a civil partnership cannot take place if:

  • The foreign decision is not final.

  • The foreign authorities or courts had no jurisdiction according to German law (section 109 I 1, FamFG).

  • The civil partnership was granted in default of the respondent's appearance because he was not served with the document that instituted the proceedings, or with an equivalent document, in sufficient time or manner to enable him to arrange his defence, unless it is determined that the respondent has accepted the judgment unequivocally (section 109 I 2, FamFG).

  • The decision is irreconcilable with a German judgment or a previous foreign judgment, which must be recognised in Germany, or if the proceedings are incompatible with previous pending German proceedings (section 109 I 3, FamFG).

  • Recognition of the civil partnership would lead to a result that is incompatible with the leading principles of German law (ordre public) (section 109 I 4, FamFG).

Divorce

7. What are the grounds for divorce?

Divorce

A marriage can be dissolved by divorce if it has broken down (section 1565 I, BGB). This applies where conjugal relations no longer exist and the spouses cannot be expected to restore it.

The breakdown is presumed if the spouses have lived apart for either (section 1566, BGB):

  • One year and both of them want the divorce.

  • Three years and one spouse wants the divorce.

Living apart means:

  • Separation of board and lodging.

  • No common meals.

  • No services for the other spouse.

  • No other similarities.

If conditions are respected, a separation can take place within the same house or apartment.

A divorce can take place, even if the spouses have not separated for one year, if the continuation of the marriage could lead to an unbearable hardship for the applicant. The reasons must be based on the character of the respondent, such as severe verbal abuse and rude violations of the other, such as:

  • Frequent mistreatment of the spouse.

  • Alcoholism or frequent alcohol abuse.

  • Concealment of previous convictions.

However, a divorce cannot take place if its continuation until the end of the first year of separation is in the interest of the common minor children.

In addition, a divorce cannot take place if the divorce causes the respondent, because of extraordinary circumstances, significant hardship, so that maintaining the marriage would be expected of the applicant. This could be the case if the respondent was, for example, in the final stages of muscular sclerosis and there was a danger of deterioration.

Nullity

A marriage can be annulled by a judgment if there is a reason for the dissolution (section 1313 ff, BGB). The law provides the following reasons:

  • When concluding the marriage, one partner was not able to marry.

  • When concluding the marriage, one partner was incapable of acting in law.

  • When concluding the marriage, one partner was already married to a third party.

  • If the partners are related by lineal descent or full or half brothers and sisters.

  • If the parties did not give their statement to conclude the marriage personally and if both parties were not present.

  • If one spouse had concluded the marriage in a state of unconsciousness or disturbance of the mind.

  • If one spouse had not known that a marriage was taking place.

  • If one party had concluded the marriage because of fraud. However, if the fraud concerned property or was concluded by a third party, this would not lead to a suspension.

  • If one party had been led into the marriage by an unlawful threat.

  • If both parties had agreed before they married that they did not want to be bound in wedlock.

Judicial separation

Judicial separation is defined in section 1567 of the BGB. Spouses are regarded as living apart if there is no "domestic community" between them and it is clear a spouse does not intend to create this because he or she rejects conjugal community. Domestic community also no longer exists if the spouses live apart in the matrimonial home. Living together for a short period, which is intended to reconcile the spouses, does not interrupt or suspend the periods laid down in section 1566.

Judicial separation can take place within the family home if the parties live in separate rooms and lead separate daily lives.

The party who applies for the divorce must prove that separation has taken place.

During the year of separation both parties must have the possibility of thinking about the decision to separate. Accordingly, no final changes must take place, for example, there must be no sale of the family home to give the parties the chance to change their minds and come back to the marriage.

During the separation, the "weaker party" has the right to maintenance (section 1361, BGB).

In general, the rules set out in Question 11 apply with some variations, for example:

  • The party who did not work during the marriage has no obligation to do so during the year of separation.

  • If one of the parties leaves the family home and the other one inhabits a house that is regarded as too big, the remaining party is only entitled to a "reasonable" amount for household expenses in the calculation of maintenance, not the whole value.

  • If one of the parties leaves the family home and the other then inhabits a house that is too big for her/him, only a fair amount for the utilisation is included in the calculation of the maintenance, not the whole value.

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

German law distinguishes the courts' powers to allocate financial resources on the breakdown of a marriage between:

  • Maintenance.

  • Equal division of pension entitlements.

  • Equal division of accrued gains.

  • Division of the household effects.

  • Division of joint property.

In Germany, the statutory regime for matrimonial assets is referred to as community of accrued gains. The principle of community of accrued gains is based on the separation of assets. After marriage, each spouse remains the sole proprietor of his or her assets, and also of any assets that he or she has acquired during the marriage. The equal division of accrued gains means that only the increase in the value of the assets will be balanced.

 
9. What factors are relevant to the exercise of the court's powers?

Maintenance

See Question 11.

Equalisation of pension entitlements

The court must equalise pension entitlements at the same time as the divorce. Other aspects are dealt with only on application. The equalisation of pension entitlements takes place by transferring entitlements from one pension account to the other.

Equalisation of accrued gains

The principle of community of accrued gains is the statutory regime governing matrimonial assets and is based on the separation of assets. Even after the marriage, each spouse remains the sole proprietor of assets acquired before and during the marriage.

The equalisation of accrued gains means that only the increase in the assets' value is divided. The increase in the assets' value is defined as the surplus, resulting from the difference between the initial assets of a spouse and the assets at the end of the marriage.

The marriage date and the service date of the divorce petition to the other party are the two deadlines required for the calculation of the equalisation of the increase in assets' value.

The initial and final assets at the deadlines are listed and which assets each spouse owned at the respective deadlines are calculated:

  • Initial assets. Initial assets are calculated in accordance with the cost of living index (Jahresverbraucherpreisindex). These amounts are added to the initial assets that one spouse will acquire as a result of death, with regard to a future inheritance, by gift or as furnishings. The cost of living index at the date of the gift or inheritance is applied to the added assets. If the increase in the assets' value (Zugewinn) of one spouse exceeds the share of the other spouse, the latter is entitled to one half of the surplus in money. There is no possibility of acquiring one half of the assets.

  • Final assets. The equalisation of accrued gains only applies to assets acquired during the marriage. There is no equalisation of the assets acquired when the parties lived together before the marriage took place.

Division of household effects

The separation of common assets is achieved through an execution sale. Only proceedings to divide up the matrimonial household effects lead to an allocation of specific objects. For the specific objects of the household, this means that the spouse becomes the final owner of the former common objects.

Division of joint property

The court does not have the right to allocate real estate or other assets. Proceedings concerning the marital home are comparable. One spouse can apply to stay in the marital home if the move would lead to unbearable hardship for the spouse. However, this would only mean that the parties conclude a rental agreement. The remaining spouse does not become the owner of the real estate.

 
10. What is the court's current position on the division of assets?

See Question 5 on the equalisation of accrued gains under German law.

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

Overview

German law offers the possibility for the financially weaker party of the divorce to receive maintenance. German law takes the autonomy of the spouse after the divorce as its starting point. This idea of autonomy was strengthened by a new law that came into force on 1 January 2008 (see below, 2008 reforms).

A spouse only has the right to post-matrimonial maintenance if the spouse:

  • Has taken care of the children.

  • Is no longer able to earn a living because of age.

  • Is unable to earn a living because of illness or weakness.

  • Is unable to find adequate employment after the divorce.

  • Is unable to earn as much as the other spouse.

  • Loses a secure job.

  • Needs maintenance to obtain further education.

  • Needs maintenance to secure equity.

Maintenance can be limited in time and amount. The court must decide on a limitation in the initial proceeding. No limitation is possible after that. Whether the limitation on the maintenance is adequate must be determined in every case based on the following criteria:

  • To what extent the spouse was disadvantaged throughout the marriage in earning his or her own maintenance.

  • How long the spouse took care of the common children.

  • Who took care of the household and who was responsible for earning the income.

  • How long the marriage lasted.

The judge must also take into consideration how much time the spouse will need to become financially independent.

The court can deny, reduce or limit maintenance if payment would result in gross inequity for the other spouse. The judge must take the interests of the children into consideration (for example, if the children are being looked after by the other spouse), when deciding this.

As a rule, maintenance must be paid monthly in advance. A spouse can only ask for a lump sum in special cases. There must be an important reason, for example, if the spouse intends to leave the country. On the other hand, the spouse who owes the maintenance must be living in very good financial conditions, so that paying a lump sum would not be a problem. If there is no important reason, the judge will be unable to order payment of a lump sum. Consequently, the payment of a lump sum is usually only possible if the parties agree.

2008 reforms

German law reforms to the right to maintenance came into force on 1 January 2008. Since then maintenance claims have usually been limited to a certain period of time and lowered after a certain period.

Before the law came into force, the weaker party to the marriage could claim for life-long maintenance according to the marital circumstances of living if the marriage had lasted more than 20 years. Maintenance claims can now be limited and reduced even in those cases. One important point is whether the one who has taken care of the children or took charge of the household had a break in their career. If so, the other party must pay maintenance.

There was a change of law in relation to marriages of long duration which came into force on 1 March 2013. Section 1578 (b) of the BGB was amended and now the length of the marriage has become the second important point.

The BGH associates long marriages with increasing personal and economic relations which indicate confidence in a permanent continuance of the marriage. This must be considered when looking at reasons for the maintenance of equity before deciding on a reduction of maintenance. For example, a reduction of maintenance was refused in a case where the marriage had lasted for 32 years and where the wife had never worked on a regular basis (KG, 13. ZS – FamS – decision of 13 September 2013, 13 UF 94/13).

The practice differs from state (Bundesland) to state. There is a frontier in the middle of Germany. South of this frontier the judges are regarded as very generous, north of this they are considered strict in limiting and reducing maintenance.

In the south of Germany, the courts do not normally cut off maintenance directly after the divorce. As a rule, even if there is no break in career, maintenance must be paid for a third or quarter of the length of the marriage. If there was a break in the career, maintenance can be payable for a lifetime. However, the amount of maintenance is limited after a certain time to the amount that the person would have earned if they had not married (BGH 14.10.2009, XII ZR 146/08).

The second major change is the fact that, according to the new law, the parent who takes care of the child must start working when the child is three years old. For this period of time, meaning the first three years, the parent who takes care of the child has the right to maintenance.

The duration of the claim of maintenance is extended for as long as necessary and to the extent that it is equitable. The concerns of the child and the existing possibilities for childcare must be taken into account. In addition, the duration of the maintenance claim can be extended if equitable, taking into account (section 1570, BGB):

  • The arrangement of childcare.

  • Any gainful employment in the marriage.

  • The duration of the marriage.

The courts must decide what is equitable and they can do this in different ways. Some courts do not expect the spouse looking after the children to work in full-time employment after the third birthday of the youngest child, others do. The court makes decisions on a case-by-case basis, meaning there is no legal certainty.

 
12. Is it common for maintenance to be awarded on marital breakdown?
 
13. What is the court's current position on maintenance on marital breakdown?

Child maintenance

14. On what basis is child maintenance calculated?

The parent who does not look after the child must pay child maintenance. The amount of the child maintenance depends on the income of the parent who does not look after the child. All forms of income for the parent who must pay maintenance are relevant.

If the parent is self-employed, the average income of the last three years is used.

If the parent is employed, the salary of the last 12 months is relevant.

If there is income from rent, an average is also calculated based on the last three years.

Income from capital is based on the income of the last year.

If the parent who must pay maintenance lives in a house or apartment of their own, the saved rent is taken into account. Income taxes, social insurance contributions and age care contributions are deducted from the whole sum. Loans are considered in an appropriate amount. In addition, professional expenses are considered.

Once this exercise has taken place, the so-called Düsseldorf scale (Düsseldorfer Tabelle) is used. The Düsseldorf scale has four age categories:

  • Zero to five years old.

  • Six to 11 years old.

  • 12 to 17 years old.

  • 18 years old and older.

There are ten income groups. The lowest starts from up to EUR1,500. In this group a child aged zero to five years old receives a minimum maintenance of EUR317 per month. This amount is pro-rated with the state child allowance, so the amount that must be paid is EUR225 per month.

The highest income group is EUR4,701 to EUR5,100. In this group a child between zero to five years receives child maintenance in the amount of EUR508 per month. After pro-rating the state allowance, the amount that must be paid is EUR416 per month.

A student who does not live in the house of the parents will normally receive a fixed child maintenance amount of EUR670 per month.

If the income of the parent who owes the child maintenance is over EUR5,100 per month, the child maintenance must be fixed according to the individual needs of the child. The monthly needs of the child must be listed.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

Foreign financial orders can be enforced according to international conventions. Within the EU, the relevant provisions are the:

  • Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (EUGVVO).

  • European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (EUGVÜ).

The new EU Maintenance Regulation, Council Regulation (EC) No I/2009 of 18 December 2008 and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations came into force on 18 June 2011. They replaced and amended (in relation to maintenance claims) the jurisdiction and enforcement provisions of the Brussels I Regulation (Article 68) in family cases. The regulation applies to Germany and some other European countries.

In addition, the EFTA Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 (Lugano Convention) or Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention) provides rules in relation to Iceland, Norway, Switzerland and to former Polish judgments.

In general, the most favourable international convention is applicable according to the favourable principle (Günstigkeitsprinzip). If no international convention applies, the enforcement follows section 107 ff of the FamFG.

Enforcement is only possible if the foreign decision is recognised in Germany. Recognition will take place by law; however, if the following preconditions apply recognition of financial orders cannot take place (section 109, FamFG):

  • The financial orders are not final.

  • The foreign courts had no jurisdiction according to German law (section 109 I 1, FamFG).

  • The orders were made in default of the appearance of the party because the respondent was not served with the document that instituted the proceedings or with an equivalent document in sufficient time and manner to enable him to arrange his defence, unless it is determined that the respondent has accepted the judgment unequivocally (section 109 I 2, FamFG).

  • The order is irreconcilable with a German judgment or a former foreign judgment that must be recognised in Germany or if the proceedings are incompatible with former pending German proceedings (section 109 I 3, FamFG).

  • The recognition of the divorce would lead to a result that is incompatible with the leading principles of German law (ordre public) (section 109 I 4, FamFG).

There must be reciprocity. German courts only acknowledge decisions of foreign countries in which comparable decisions of German courts are acknowledged (section 109 IV, FamFG). The decision must be declared enforceable according to section 110 FamFG in formal proceedings.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

A German court can make orders following a foreign divorce if the foreign court has not yet decided on ancillary consequential matters. This is very often the case if the foreign law does not recognise a balance of pension entitlements. German courts have jurisdiction if either (section 102, FamFG):

  • The applicant or respondent are habitual residents in Germany.

  • The court has to decide on German pension entitlements.

  • A German court has already decided on the divorce.

If a foreign decision is not recognised, the German court can make a new order in the same area. If a foreign decision on an ancillary consequential matter must be recognised, a variation can be possible.

If there is a maintenance claim, a variation can take place if the facts on which the decision was based have changed essentially after the decision (sections 238 to 240, FamFG).

If there is a decision on childcare or visitation rights, a variation is possible if the best interest of the child requires a variation of the foreign decision.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

German law makes a strict distinction between:

  • Parental custody.

  • The right of visitation.

Parental custody is the duty and right of the parents to care for a minor child (section 1626 I, BGB). Parental custody includes care for the person and his or her property.

In the care and upbringing of the child, the parents take account of the growing ability and need of the child for independent, responsible action (section 1626 II, BGB).

As a rule, if the parents are or were married, they retain, even after separation and divorce, joint parental custody of their children.

Joint custody, according to German law, means that the parents have to consult each other and take joint decisions in relation to long-term issues that relate to the child, for example, in respect of religion, education and medical care. In relation to long-term issues, there is no right of one parent to decide without consulting the other parent unless the parents cannot reach an agreement and the court decides one parent can decide on specific issues on his or her own. Only in very exceptional cases will the courts give one parent sole parental custody.

The parent with whom the child lives or who has visitation rights can decide on day-to-day issues without the consent of the other parent.

If necessary, one parent can ask the court to decide where the child should live.

Currently the Wechselmodell (double residence/joint physical care) is being discussed intensively. The question is whether the BGB allows the courts to decide on the Wechselmodell or whether it is only feasible if both parents agree on it.

Most of the courts, particularly the higher courts do not decide on a Wechselmodell arguing there is no legal basis for it. The law in this regard must be changed. The question that needs to be addressed is whether the Wechselmodell requires the consent of both parents. Most of the courts assume that both parents consent has been obtained.

On 19 May 2014, a new law to reform the parental care of non-married parents came into force. There was a change to section 1626 (a) of the BGB and an accelerated proceeding under section 155 (a) of the FamFG came into force. The rules concerning parents that are not married are described in an amended version of section 1626 (a) of the BGB. If the parents, at the date of the birth of the child, are not married to each other, they have joint parental custody if:

  • They declare that they wish to take on custody jointly (declaration of parental custody).

  • They marry one another.

  • The family court transfers joint parental custody to them.

The European Court of Human Rights decided in December 2009 that section 1626 (a) I of the BGB violated the rights of a legal father and that therefore the German parliament must amend the law. This was done in a new §2 of the BGB. The amended law provides the father with an opportunity to apply for joint parental custody. The family court must now decide in principle in favour of the father, if the welfare of the child is not harmed. If the legal mother does not react or does not present relevant facts that justify refusal of joint parental custody, there is a legal presumption that the parental custody of the father does not harm the welfare of the child.

On 13 July 2013, the German Bundestag adopted the Law on the Strengthening of the Rights of the Physical, not Legal Father. If the physical father shows sustainable interest in the child, he obtains visitation rights and the right to information concerning the child. Only if this is against the best interest of the child will those rights be refused.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

In principle every legal parent has the right to contact with their own child (section 1626 III, 1684, BGB). The rights of contact of a genetic father who is not the legal father are very limited: the father has the same right of contact as a non-related person even if he has a close social bond to the child and did or has actual responsibility for the child (section 1685 II, BGB). If these requirements are not fulfilled, whether or not due to the fault of the genetic father, he has no right of contact.

According to the change in law that came into effect on 31 January 2013, the rights of the genetic father are strengthened if he has shown constant interest in the child. He is also allowed to request personal information about his child. If it is uncertain that he is the genetic father, he has the right to ask the mother and the child to contribute genetic information to ascertain who the father is (section 1598 a, BGB).

The right of visitation can be limited if it endangers the welfare of the child. But the limitation must always be the minimum possible. For example, the child protection organisation (Kinderschutzbund) can be asked to accompany the visits (begleiteter Umgang) of a parent to observe if either the:

  • Danger to the welfare of the child disappears over time.

  • Child begins to become familiar with a parent whom the child had previously not seen for a long period.

Contact normally starts with a brief period of contact, with a view to achieving unaccompanied contact with the parent.

Sometimes, accompanied contact is a means to ease the concerns of one parent that the other is unable to care for the child. Courts only tend to respect these concerns if there is evidence to justify them. In the case of separation of the parents, regardless of whether they are married or not, where the parents cannot agree on contact, either parent can ask the Family Court to decide on the extent and content of the right of contact.

The right of contact changes gradually according to the age of the child. In the case of young children, courts normally offer more frequent but shorter contact without an overnight stay. When children become older, the courts usually decide in favour of contact:

  • Every other weekend.

  • Half of the school holidays.

  • An overnight stay for one or two nights (per week).

If the parent who does not live with the child lives far away, there may be changes to the above principles.

International abduction

19. What is the legal position on international abduction?

Germany is a signatory to the:

  • Hague Convention on the Civil Aspects of International Child Abduction 1980 (25 October 1980) (Hague Child Abduction Convention).

  • Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).

  • Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children of 19 October 1996 (1996 Hague Convention), commonly known as the Child Protection Convention.

The central authority is the Federal Office of Justice (Bundesamt für Justiz). Its website provides helpful information (www.bundesjustizamt.de) (English translation available).

The procedure for child abduction proceedings has been centralised. Only 22 out of 600 family courts in Germany have jurisdiction to hear abduction cases. There is a decrease in the number of abduction cases going to court. On average the length of proceedings exceeds six weeks.

The exceptions under Article 13 of the Hague Child Abduction Convention not to return the children are now handled consistently in accordance with the aims of the Convention. Enforcement of return orders is controlled by the court but can be lengthy and difficult. Voluntary return settlements with undertakings and safe harbour decisions are usually ordered on an interim basis. Communication between judges of the countries involved is no longer the exception.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

Parents have joint care of their children born during the marriage. Therefore, where the children should live is a joint decision of the parents. If one parent, after the separation, wants to move, this is only possible with the consent of the other parent.

If a child was born out of wedlock, the mother has sole care. Joint care is only possible if the mother agrees to this. However, this will change in the near future according to a decision of the European Court of Justice. If the mother has care, it is up to her alone to decide where the child should live. If the mother wants to move, she does not need the consent of the father.

If one parent wants to move with a child to another place, especially to a foreign country, this parent must apply for the sole care or the right to decide where the child will have their habitual residence.

Joint care is the rule. Sole care by one parent is only possible if the other parent does not care enough for the child, or if the child moves to a foreign country.

A parent will only obtain sole care or the right to decide where the child should live if this is in the best interests of the child. To determine the best interests of the child, the following criteria must be taken into consideration:

  • Principle of continuity. This refers to the question of which parent brought up the child most of the time. The principle is based on evidence that the continuation of familiar and social relations is very important for the stable and healthy development of a child.

  • Principle of promotion or support. The court must decide which parent is better able to promote or support the child.

  • Relationship to the parents and brothers and sisters.

  • Wishes of the child. It is the constitutional right of a child that his or her wishes be considered as far as this complies with the interests of the child. The older the child, the more seriously the child's wishes are taken into account (BVerfG FamRZ 2007, 105; BVerfG FamRZ 2007, 1078). The court must check in every case whether the child's wishes are stable and objectively comply with his or her interests. If the court decides that the wishes are stable and the child has good reasons for them, the court will then take them into account. Before the court makes a decision, the local youth welfare office is asked for an opinion. As a rule, the court will also appoint a guardian to accompany the child. In addition, it is possible to call expert psychologists to assist.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

Since 1991, the Embryo Protection Act (Embryonenschutzgesetz) (ESchG) has prohibited a doctor from supporting the performance of surrogacy agreements. In addition, section 13c of the Law Concerning the Agencies for Adoption (AdVermiG) prohibits an agency from arranging the conclusion of surrogacy contracts. Under criminal law, a doctor can be sentenced with imprisonment of up to three years or a fine, for supporting surrogacy agreements (section 1 I, ESchG). The agency can be sentenced in the same way (section 14b, AdVermiG). There is no prosecution of the host mother or the contracting parents.

If there is a legally prohibited surrogacy agreement, the mother of a child is regarded as the woman who gave birth, that is, the host mother, not the contracting, ordering or genetic mother (section 1581, BGB).

It is not possible to change the legal position by using foreign (legal) documents or concluding a foreign contract.

The contracting male can only be the legal father if he either (section 1595, I BGB):

  • Is the genetic father and initiates court proceedings to obtain recognition of fatherhood.

  • Obtains the consent of the host mother who acknowledges that he is the father (whether he is the genetic father or not).

Surrogacy agreements are prohibited if the host mother is a woman who carries a baby who is genetically the baby of two other people or if she is a woman willing to permanently give away her own child to other people.

An agreement between a host mother and the contractors to give away the child of the host mother by adoption is void, and the promise to pay the host mother is also invalid.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Adoption is possible if it serves the best interests of the child and it is anticipated that a parent-child relationship will arise between the adoptive parent and the child (section 1741 I, BGB).

The adoption cannot be confirmed if either (section 1745, BGB):

  • The overriding interests of the children of the adoptive parent or of the child to be adopted prevent it.

  • It is to be feared that the interests of the child to be adopted are endangered by children of the adoptive parent.

There should be an appropriate time allowed for the child and the adoptive parent to see if they are suited to one another. In principle:

  • Only a married couple are allowed to adopt a child together.

  • An unmarried person is only allowed to adopt a child alone.

  • A married person can adopt the child of his or her husband or wife alone if the husband or wife adopted the child before they got married or it is the genetic legal child of the spouse.

  • A married person aged 25 years or older can adopt the child of his or her husband or wife alone if that partner is not yet 21 years old or is not legally competent.

The consent of the legal representative of the child and/or the legal parents is necessary to adopt a child. If the child is aged 14 years or older, the consent of the child is also required. If the child and the adoptive parents are of different nationalities, the Family Court must agree.

The consent of one parent or both parents for the adoption by another person/couple can be substituted by the Family Court, if they have persistently and grossly violated their duty to the child.

The consent must be certified by a notary and presented to the Family Court.

With adoption, the child becomes the legal child of the adoptive parents/person/couple who receives parental custody by law. The legal relationship to the previous parents, to former siblings, grandparents, great-grandparents or cousins ends. The child receives the family name of the adoptive family.

A homosexual partner can adopt the legal genetic child of his or her homosexual partner if they are registered (section 9, Law on Civil Partnerships (Lebenspartnerschaftsgesetz) (LPartG). If a homosexual person wants to adopt a child alone, it would be against Article 14 of the European Convention on Human Rights, if he or she were refused, simply because of his or her sexual orientation. But if there are other reasons to protect the welfare of a child an exception can be made (BVerfG FamRZ 03, 149).

On 19 February 2013, the Federal Constitutional Court decided that a homosexual partner in a registered homosexual relationship can adopt the child of the other partner if he or she adopted the child before they were registered. The Federal Constitutional Court has not yet decided whether a joint adoption of a child by a registered homosexual couple is possible, although case law may develop in that direction. An adult can be adopted if there is an ethical justification for it.

 

Cohabitation

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

The rules governing the division of property for married couples do not usually apply to unmarried couples.

According to German law, "the family" is specially protected by Article 6 of the Constitution of the Federal Republic of Germany (Grundgesetz).

In principle, in the case of separation there is no compensation for:

  • One partner paying more of the living costs during the cohabitation.

  • A diminished pension claims as a result of the disadvantages of cohabitation. For example, if one partner raised the common children, this parent would not be entitled to a pension claim as high as the other parent who was not prevented from working.

  • Earning less where the common child was raised by one partner to the disadvantage of his or her career.

  • The diminished capital or property built up due to the cohabitation (for example, if children were raised by one partner or one partner gave up work to care for the household).

There are some cases in which compensation can be awarded. However, these are not provided by law, but developed by case law. If:

  • There is a partnership between a couple that goes beyond private day-to-day life together. For example, if the couple built up a business together that was considered to be a joint business with joint investment of work and/or money, even if only one partner was the legal owner, the other partner can ask for a share of the business.

  • One partner worked in the business of the other partner without payment and the business increased in value or the other partner was able to save money as a result, the unpaid partner can ask for compensation. This is limited to the amount of saved expenses or raised value of the business and only if the contribution of one partner was more than one could expect in a regular partnership.

  • A couple built or renovated a house, but only one partner is the legal owner, the other partner can ask for compensation for the work he or she invested if the house increased in value or the legal owner of the house was able to avoid other expenses because of the work or investment of the other partner. To refuse compensation must contravene the principle of good faith.

  • There was an agreement between both partners to achieve a particular aim through their joint contribution, even if they had not spoken expressly of their common aim, but the receiving partner understood and did not contradict the contributor's contribution, there may be compensation for the contributor if the aim was not achieved. For example, the aim might be the expectation of long-term participation in the benefit of a house built with the help of the partner claiming compensation.

Compensation is not available if the cohabitation ended due to the death of the contributing partner. Compensation claims are not inheritable.

Finally, unmarried couples do not receive the benefit of certain tax laws that apply to married couples.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

On 26 July 2012, the Law on Mediation concerning the promotion of mediation and alternative methods of dispute resolution came into force.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Mediation

Mediation is defined as a confidential and structured proceeding where the parties try to voluntarily and autonomously find a consensual solution to their conflict with the help of a mediator (section 1, Law on Mediation) (MediationsG).

The mediator is usually specially qualified and independent, and will guide the parties through the process of mediation. The mediator has no power to impose a binding decision on the parties. Mediation is a private civil contract between the parties, and between the parties and the mediator.

Mediation is not restricted to cross-border cases but can apply to other civil cases as well as family law disputes. It can take place before or without starting court proceedings. There is also the option to stay court proceedings and ask a judge who specialises in mediation or is a mediator for help. If the mediation fails, the court proceedings can continue.

The mediator is bound by secrecy and has the right to refuse to give evidence in court (section 4, Law on Mediation (MediationsG); section 383 I Nr. 6, Code of Civil Procedure (Zivilprozessordnung)). An exception is only possible if there are reasons of public interest, for example if there is danger to the welfare of a child.

The mediator must inform the parties that they should seek the advice of external advisers, for example lawyers.

When starting court proceedings, the court must be informed that mediation has taken place or if there were any reasons that prevented the parties from pursuing mediation. The court can order that the parties must attend a meeting to discuss the possibility of mediation and require confirmation of attendance.

Mediation is not appropriate in all family law proceedings, for example in adoption or descent proceedings. Proceedings where children are concerned must be continued within three months if there was a break in the court proceedings in favour of mediation and the mediation did not lead to an agreement within that time.

If the case concerns violent matters, the Family Court must consider the interests of the victim in any suggestion for mediation.

It will be some time before mediation becomes common in Germany.

Collaborative law

In Germany, there is no legal basis for collaborative law and it is not widespread. However, parties can agree to proceed on a private contract basis.

Arbitration

In contrast with mediation, arbitration transfers the power of decision-making to third parties without normal court proceedings.

It is only available in matters concerning the:

  • Maintenance of spouses.

  • Division of property.

  • Equalisation of accrued gains.

It is not available in matters relating to:

  • Divorce.

  • Equalisation of pension entitlements.

  • Children.

The legal basis of arbitration is set out in section 1030 I of the Code of Civil Procedure (ZPO). The parties agree that:

  • One or more private persons act as arbitrators.

  • The agreed arbitrators have the power to decide on the legal dispute if an agreement between the parties is not possible.

Arbitration in family law matters is not yet common in Germany.

In Munich, three retired family judges established Family Arbitration. In Stuttgart, two judges did the same.

Family law arbitration is only possible if both parties are represented by lawyers. Arbitration can lead to the following results:

  • Agreement on the discussed matters.

  • The arbitrator's decision.

  • Both parties agreeing not to complete the family arbitration.

  • The parties being bound by the arbitrator's decision.

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

German law provides special status for same-sex partnerships (Lebenspartnerschaftsgesetz).

Under the Lebenspartnerschaft, two people of the same sex can declare before the Registrar General that they want to set up a partnership for life. Both parties must be:

  • Over 18 years old.

  • Unmarried.

Both parties must not:

  • Already be in another partnership.

  • Be relatives of direct descent or brothers or sisters.

In addition, they must take the declaration seriously.

The partners are free to:

  • Take the name of the other partner as their common name.

  • Double-barrel their names.

  • Keep their own names.

If the partners do not make other arrangements in respect of their property, the rules on community of accrued gains apply. As in the case of married couples, the partners:

  • Can conclude a contract.

  • May owe each other maintenance.

The dissolution of the partnership follows the same rules as the divorce of married couples. The pension entitlements are balanced as if the partners were married.

There are also special rules for the children of one of the partners. A child of a partner can choose the name the partners have chosen as their partnership name. If one of the partners, as parent of the child, has the sole care, the other partner can have the right to decide together with their partner on decisions regarding the day-to-day life of the child. This is called little custody and is not possible if the parents have common custody. A partner can adopt the children of the other partner if both parents of the children agree to this. It is therefore possible for the children to have parents of the same sex. In this case, the partners have common care of the children. If the child was adopted by the other partner, this partner may be obliged to pay for the support of the child.

The BVerfG had to decide on a case in which one partner of the civil partnership had adopted a child and subsequently the other partner wanted to do the same (Sukzessivadoption) (successive adoption). Section 9 VII of the old version of the Lebenspartnerschaftsgesetz did not allow that. The BVerfG stated that the provision violated Article 3 I GG (principle of equity). As a result, the law was changed and now allows for successive adoption. Nevertheless, up to now German law has not allowed an adoption of a child by both partners of a civil partnership.

German inheritance law is the same for spouses and same-sex partners. The only difference is in the area of taxation. Married couples have privileged tax rates while partners do not. The disparity was the subject of a decision of the BVerfG (decision of 7 May 2013, 2 BvR 909/06, 2 BvR 1981/06 and 2 BvR 288/07). The unequal treatment is incompatible with Article 3 I GG (Grundgesetz) and is a violation of the principle of equality. The legislator needs to clear the violation retrospectively with regards to the introduction of the LPartG.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Currently, the Wechselmodell (double residence/joint physical care) is being discussed intensively (see Question 17).

The German courts decide controversially. The problem is that the Wechselmodell requires the consent of both parents, and one parent can always block its application by not consenting. This is why some courts attempt to find a legal way to decide on the Wechselmodell. A decision from the Federal Supreme Court of Justice (BGH) regarding a change of law is currently awaited.

There is also discussion in Germany about whether the partners of a civil partnership should be allowed to adopt children together (not only one by one in the way of a successive adoption). The same rules are now considered to apply to adoption for married couples and civil partnerships.

Surrogacy and sperm donation are currently hotly discussed topics in Germany. In relation to sperm donation, there is much discussion particularly regarding the question of maintenance to be paid by the father and information about the father to be given to the child. Problems arise due to the fact that Germany does not allow surrogate mothership. This means that many children born to a surrogate mother are born out of Germany and in a lot of cases are not allowed to enter Germany.

 

Online resources

Federal Ministry of Justice (Bundesministerium für Justiz und Verbraucherschutz) in co-operation with juris GmbH

W www.gesetze-im-internet.de

Description. Homepage of the Federal Ministry of Justice (Bundesministerium für Justiz und Verbraucherschutz) in corporation with juris GmbH. Translations are for guidance only.



Contributor profile

Dr. Daniela Kreidler-Pleus, Partner

Anwaltskanzlei Dr. Kreidler-Pleus und Kollegen

Address Bahnhofstr. 29, D-71638 Ludwigsburg, Germany
T +49 7141 920005
F +49 7141 902900
E kanzlei@kreidler-pleus.de
W www.kreidler-pleus.de

Professional qualifications. German lawyer (second state exam); Doctorate in law; 1997 to 2001: President of the family and estate law commission of AIJA; certified family law specialist (FA für Familienrecht)

Areas of practice. Since 1990 working in international family law.

Languages. German, English, French, Portuguese

Professional associations/memberships. Since 2001 member of the IAML; board member of the Baden-Württemberg lawyers' pension fund; member of the working group for family law in the German Association of Lawyers; member of the working group for inheritance law in the German Association of Lawyers; President Elect of the European Chapter of the IAML.


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