In short
With consent and a Trennungsjahr (year of separation), the breakdown of the marriage is established. You can consent without a lawyer and withdraw your consent until the end of the hearing. Without consent, the court has to be convinced of the breakdown; after three years of separation it is presumed.
On this page · 9 sections
What does consenting to the divorce do?
With your consent and one year of living apart, it is established that the marriage has broken down § 1566 (1) BGB. The court then asks for no reasons and does not examine whether the marriage could still be saved. That is the core of the einvernehmliche Scheidung (uncontested divorce).
The same applies if you both file for divorce. A petition of your own, however, requires a lawyer of your own. To consent, you need no representation § 114 (4) no. 3 FamFG.
What you do not give up by consenting
Consent concerns only the divorce itself. Maintenance, the Zugewinnausgleich (equalization of accrued gains), the Versorgungsausgleich (pension rights adjustment), the home and the children are not affected by it. The court carries out the pension adjustment on its own initiative in any case.
You can still assert claims to the equalization or to maintenance after the divorce, though subject to deadlines. Which ones they are is set out in Property, maintenance, home: the deadlines after a divorce. If you want to file applications of your own in the proceedings, for instance for maintenance, you need your own lawyer for that § 114 (1) FamFG.
How and where you consent
The simplest way is to consent at the divorce hearing, on the court’s record. You can also declare your consent beforehand on the record of the court office § 134 (1) FamFG. The office of any local court will do, including the one where you live § 129a ZPO.
Consent cannot be made subject to conditions. A sentence such as “I consent if I keep the car” is not valid consent. If you want to settle the consequences first, conclude the agreement first and consent afterwards. What can be settled and in which form is described on our page on the divorce settlement agreement.
What you save with a single lawyer
If you consent without being represented yourself, you pay no lawyer’s fees of your own. As a rule, you both bear half of the court fees, regardless of who filed the petition § 150 (1) FamFG. How high they are is explained on our page on costs.
There is one point you should know. Only someone who is represented by a lawyer can waive the right to appeal. Without your own representation, the divorce therefore only becomes final once the one-month period has expired. More on this in The divorce hearing: how it runs in court.
Until when you can withdraw your consent
You can withdraw your consent until the close of the oral hearing on which the divorce is decided § 134 (2) FamFG. You do not need a lawyer for this either. The law requires no reasons.
After a withdrawal, the proceedings continue as a divorce without consent. What applies then is set out in the next section. As a rule, a withdrawal delays the divorce, but it rarely prevents it.
Intake form
Gather the details for the petition now
With the form you collect what the court requires. We review it before the first consultation.
- About half an hour, pause at any time
- Stays on this device until you send it
- We clarify gaps at the appointment
What applies without consent
Without consent, the court has to be convinced that the marriage has broken down § 1565 (1) BGB. It has broken down if the marital union no longer exists and it cannot be expected that you will restore it.
After one year of living apart, it is usually enough that one of you finally rejects the marriage and says so credibly at the hearing. The court hears both of you on this § 128 (1) FamFG. If you have lived apart for three years, the breakdown is irrebuttably presumed, even against the other spouse’s will § 1566 (2) BGB.
A default decision is ruled out in divorce matters § 130 (2) FamFG. If the other side does not respond at all, the court still decides on the merits. If they live abroad, Spouse living abroad: how the divorce works in Germany describes how the petition reaches them.
When the court does not divorce despite the breakdown
In rare cases, the court does not divorce a marriage that has broken down for the time being. The law provides for this where the marriage exceptionally has to be maintained in the interest of minor children. The same applies where, owing to extraordinary circumstances, the divorce would be a severe hardship for the spouse who rejects it § 1568 BGB.
The courts interpret this clause narrowly. That one spouse does not want the divorce or will be worse off financially is not enough. Conversely, a divorce is possible before the year is up if continuing the marriage would be unreasonable § 1565 (2) BGB. More on this in Year of separation: when can you file for divorce?
Consent as a bargaining point
Many people link their consent to an agreement on the consequences. That is permissible as long as the order is right: first the agreement, then the consent. Once the divorce is final, this leverage is gone.
If you refuse consent only to gain time, you usually gain little. After the Trennungsjahr (year of separation), the courts grant the divorce without it, and arguing about the reasons costs both sides nerves and fees. How proceedings without an agreement run is described on our page on the contested divorce.
The next step
If your spouse has filed the petition, we tell you whether you can consent without representation or whether applications of your own are needed. If you want the divorce yourself, we clarify whether consent is missing and what that means for the timeline. The route with an agreement is described on our page on the uncontested divorce.
The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply.
Bring the Scheidungsantrag (divorce petition) to the confidential first consultation if it has already been served on you, along with the date of your separation. From that, we can see whether consent is enough or whether you should apply for something in the proceedings yourself.
This post describes the rule, not your case. What applies to you depends on circumstances that no text can cover. For an assessment we need your documents and a conversation.
Has your spouse already filed for divorce?
60 minutes, at our office or by Zoom. You describe your situation, and we tell you what lies ahead. You are under no obligation to hire us afterwards.
Under § 34 RVG (German Lawyers’ Fees Act), the first consultation costs at most €226.10 including VAT. If we take on your case, this fee does not apply. How the fees are calculated
- Consent to divorce
- Divorce without consent
- Withdrawing consent
She handles uncontested and contested divorces as well as maintenance proceedings, and alongside the divorce she also settles parental responsibility and contact, always with an eye on what it means for your family’s everyday life. View profile