German legal terms around divorce

Before the Familiengericht (family court), at least the petitioning person must be represented by an attorney; you cannot file the Scheidungsantrag (divorce petition) yourself. In an einvernehmliche Scheidung (uncontested divorce) it is often enough that this one side is represented; the other consents to the petition. An attorney always represents one side only, never both.

A provisional ruling by the court that does not wait for the main proceedings, for instance on maintenance, the matrimonial home or contact. It takes effect at once and is enforceable, but it does not replace the final decision. No lawyer is required to apply for it (§ 114 (4) no. 1 FamFG). Where matters are urgent, it is the fastest route to a workable arrangement.

Both spouses want the divorce and agree, or are close to agreeing, on the main consequences: maintenance, assets, children. That makes the proceedings faster, cheaper and less adversarial.

The place where a person’s life is actually centered. Among other things it determines which Familiengericht (family court) has local jurisdiction, rather than the address in the population register.

Exceptionally, a marriage can be dissolved before the Trennungsjahr (year of separation) has run. What that takes is unreasonable hardship for one spouse, arising from reasons that lie in the person of the other (§ 1565 (2) BGB), for instance violence or serious threats. Reasons on the applicant’s own side are not enough.

As a rule spouses must live apart for one year for the marriage to count as having broken down. The year has to be complete at the time of the decision, not already when the petition is filed, so petitions are usually filed towards the end of it. Separation is also possible within the same home.

The divorce and its ancillary matters, for example the Versorgungsausgleich (pension rights adjustment) or maintenance, are heard and decided by the court together in one set of proceedings, known as the “Verbund”.

German divorce law does not ask about fault, only whether the marriage has broken down. Who caused the separation plays no part in the divorce itself.

State support for advice outside court proceedings, applied for at the local court where you live. It covers the first consultation and out-of-court representation where income and assets are not sufficient. For the proceedings themselves, Verfahrenskostenhilfe (legal aid) applies instead.

State support that covers the costs of family proceedings in whole or in part where your own income and assets are not sufficient. It is applied for at the court (formerly: Prozesskostenhilfe).

The notional value on which court and attorney fees are based. In divorce proceedings it is derived above all from both spouses’ net income and their assets. It is not an amount anyone pays.

The two cut-off values from which the accrued gain is calculated. Initial assets are the position at the wedding, final assets the position when the Scheidungsantrag (divorce petition) is served (§§ 1374, 1375, 1384 BGB). What lies in between is the accrued gain. Inheritances and gifts count towards initial assets even when they arrive during the marriage.

The amount actually payable at the end of the equalization of Zugewinnausgleich (accrued gains). Whoever achieved the larger gain owes the other side half the surplus (§ 1378 BGB). It is a claim for money. Nothing changes ownership because of it.

The home or property used jointly by the spouses. On separation the court can decide who stays there for the time being, regardless of who owns it.

The legal arrangement governing how the spouses’ assets are treated. Without a prenuptial agreement the Zugewinngemeinschaft (community of accrued gains) applies automatically; by agreement, Gütertrennung (separation of property) or community of property are possible.

The shared objects of the household: furniture, appliances, furnishings. On separation and divorce they are divided between the spouses; where necessary the court decides on equitable grounds.

The court’s examination of whether a prenuptial agreement or a Scheidungsfolgenvereinbarung (divorce settlement agreement) holds. It runs in two stages. First comes the question whether the contract already placed one side at a one-sided disadvantage when it was made; then whether relying on it today would still be fair. Agreements that cut out child maintenance or care-based maintenance entirely rarely survive this review.

The tax burden sitting inside an asset that has not yet fallen due. In the equalization of Zugewinnausgleich (accrued gains) it is deducted to the extent it would arise on a notional sale, for instance with a practice or a share in a business. The deduction often changes the value considerably.

Certain agreements become effective only once a notary records them: they read the contract aloud, explain it and certify it officially. That protects both sides from rushed or unclear arrangements.

Compensation for one side using the shared home alone after the separation. The statute calls it a Vergütung, everyday usage often an Entschädigung; the same thing is meant. The spouse who moved out can ask for it (§ 1361b BGB), but only from the point at which they actually demand it; there is as a rule nothing retroactive. The amount follows the local market rent, reduced by the running charges that continue.

A contract in which the spouses settle the consequences of the divorce themselves by agreement instead of leaving them to the court. Examples are maintenance, the division of assets or the Versorgungsausgleich (pension rights adjustment). Often it has to be recorded by a notary.

The auction of a jointly owned property where the owners cannot agree on a sale or a buy-out. Any co-owner can apply for it at the local court (§ 180 ZVG). It is the last route and usually the most expensive, because the proceeds regularly stay below market value.

The pension entitlements both partners acquired during the marriage are split in half on divorce, so that both are provided for in old age. The court normally orders it of its own motion.

The financial advantage of living rent-free in your own property. For maintenance it is added to income, because rent saved works like income earned. An advantage remains only in so far as the rental value exceeds the financing costs, the necessary maintenance and the charges a tenant cannot be asked to carry. Anyone repaying a loan therefore often has less of an advantage than expected. In principle the full rental value applies. As long as the marriage has not finally broken down and one spouse lives in the house alone, the reasonable value can apply instead, that is the rent which matches their circumstances.

On divorce, the increase in assets earned during the marriage (the “Zugewinn”) is balanced out between the spouses in half: not the assets themselves, but their growth.

A single claim to provision that a spouse built up during the marriage. The state pension, an occupational pension, a civil servant’s pension and a private pension policy are each an entitlement of their own, and each is divided separately in the Versorgungsausgleich (pension rights adjustment).

The stretch of time that the Versorgungsausgleich (pension rights adjustment) divides. It starts on the first day of the month of the wedding and ends on the last day of the month before the Scheidungsantrag (divorce petition) is served (§ 3 VersAusglG). Anything built up before or after stays out.

The value of the entitlement moves to a different pension provider instead of staying with the existing one. This happens where the employer requires it.

The receiving person gets an entitlement of their own with the same pension provider where the other spouse built it up. This is the standard case.

The clearing up of your insurance record with the Deutsche Rentenversicherung, without which the Versorgungsausgleich (pension rights adjustment) cannot be calculated. Where periods of training, child-raising or time abroad are missing, the statement stays incomplete and the proceedings wait. This step often takes longer than everything else in an einvernehmliche Scheidung (uncontested divorce).

A nationally recognized guideline table for the amount of child maintenance, graded by the payer’s income and the child’s age. It is not a statute, but the courts use it as a guideline and it is updated every year.

The economic disadvantage left with one side by the division of roles in the marriage, for instance from giving up work to care for the children. It is the yardstick for whether post-marital maintenance is limited in time or in amount (§ 1578b BGB). Whoever relies on it has to be able to prove it, and that is where such cases fail more often than on the law.

The umbrella term for maintenance between spouses. It covers separation maintenance (during the separation) and post-marital maintenance (after the divorce becomes final).

A deduction from earned income before spousal maintenance is calculated from it. The idea is to keep the incentive to stay in work, and the effect is a lower basis for the calculation. Its size follows the guidelines of the higher regional courts and differs from region to region.

The child’s maintenance claim. Whoever cares for the child contributes through that care; the other parent pays maintenance in money, the amount of which usually follows the Düsseldorfer Tabelle.

The situation where income does not stretch to all maintenance claims and the retained amount at the same time. The statutory ranking of § 1609 BGB then applies, with minor children at the top, followed by parents providing care and spouses from long marriages. Whatever remains is distributed by quota.

Maintenance after the divorce becomes final. It is the exception: in principle everyone provides for themselves, and it comes into question only on specific grounds such as childcare, age or illness.

The tax option of deducting spousal maintenance paid as a special expense. The recipient has to consent and then pays tax on the money themselves, which is why the payer compensates them for the disadvantage that creates. Consent is declared year by year on the form Anlage U.

The amount that has to stay with the person liable for maintenance to cover their own living costs. Towards minor children it is lower than towards adult claimants, and someone in work keeps more than someone who is not. The figures are set out in the Düsseldorfer Tabelle and change every year.

Maintenance paid by the economically stronger spouse from the separation until the divorce becomes final, where the other cannot cover their own needs.

The part of Sorgerecht (custody) that decides where the child lives. Where Sorgerecht (custody) is joint, the parents decide together; in cases of conflict the court can transfer this right to one parent alone.

The right and the duty to care for a child and to decide on important matters: where they live, school, health, assets. After a separation it as a rule remains with both parents jointly.

The right of the child and of the parent not providing daily care to regular personal contact. It exists independently of Sorgerecht (custody); where the parents cannot agree, the court settles it.

A care model in which the child lives with both parents in roughly equal shares, as opposed to the residence model with one fixed main home. It also affects maintenance.

The step that decides which national law applies to a question. For divorce the Rome III Regulation works through a ladder for this. First comes the spouses’ common habitual residence, then their last common one, then their common nationality. Which rung a couple lands on decides which divorce law applies.

A certificate from the authority in the issuing state that makes a foreign document usable in Germany. It is the short route and applies between the states of the Hague Convention of 1961.

The court where proceedings run, and with a foreign element also the question of which country may decide at all. Because every court applies its own conflict of laws rules, the forum indirectly determines the applicable law too. That is why it matters who files first and where.

The body of rules that determines which national law governs a case with a foreign element. It does not decide the matter itself. It points to a legal system, and only that system then answers the actual question. For divorce it sits in the Rome III Regulation, for maintenance and matrimonial property in separate European regulations.

Confirmation of a foreign document by the German mission abroad. This route takes the place of the apostille where the Hague Convention of 1961 does not apply, and it costs mainly time; time is what tends to be missing before a hearing.

The option of settling the applicable law in advance yourselves instead of leaving it to the connecting factors. For divorce the Rome III Regulation allows this within narrow limits, for instance the law of the common habitual residence or the national law of one spouse. In Germany the agreement has to be recorded by a notary.

German jurisdiction for cases where the European rules produce no competent court. § 98 FamFG then steps in, for instance where one spouse is a German national. Without this fallback there would be constellations in which a couple could not be divorced anywhere.