Contested divorce

Not in the long run. After three years of separation the marriage counts as broken down beyond rebuttal, and without any consent from the other side (§ 1566 (2) BGB). Until then a divorce can be delayed, but hardly held up for good.

It is possible earlier as well. Anyone who wants to be divorced without consent as soon as the Trennungsjahr (year of separation) is over has to set out the breakdown of the marriage to the court and prove it (§ 1565 (1) BGB). That is possible, but it takes more effort than the route with consent, and it is one of the reasons why initial blockades frequently still turn into uncontested proceedings.

No. German law has known no divorce based on fault since 1977. What counts is only whether the marriage has broken down; that is called the breakdown principle (§ 1565 BGB). Who left the marriage, who met someone else, who behaved in what way, changes nothing about the right to a divorce.

For many people that is hard to accept at first, because it runs against their sense of justice. In law, behavior carries on having an effect only at very narrow points, for instance where gross misconduct forfeits a maintenance claim (§ 1579 BGB). For the divorce itself it has no significance.

In rare exceptions yes, through the hardship clause (§ 1568 BGB). The court may, for the time being, not divorce a marriage that has in fact broken down, to protect minor children the couple have together, or in the event of exceptional hardship for the other side.

The courts read this clause narrowly. It can apply where the divorce would plunge someone into an unbearable situation, and even then it usually only postpones the ending.

The consequential matters are the real field: maintenance, parental responsibility and contact, the division of assets and pension rights, household goods and the marital home. Each of these points can become a matter of dispute in itself, and on application the court decides them together with the divorce (§ 137 FamFG).

In practice that means three things. It takes two lawyers instead of one, because as soon as a side files its own applications, the mere consent of one side is no longer enough. The Verfahrenswert (value of the proceedings) rises with the dispute, and the fees rise with it. As a rule, each side bears half of the court costs and its own lawyer. In contested ancillary matters such as maintenance or matrimonial property, the court can allocate the costs differently according to the outcome (§ 150 (4) FamFG). And it takes longer: more hearings, often an expert report on the child’s welfare when children are involved, sometimes a guardian ad litem for the child.

A guardian ad litem is a separate representative who looks after the child’s interests alone, independently of both parents (§ 158 FamFG). The court appointing one is no sign that either of you is being accused of anything.

Months can turn into years that way, while uncontested proceedings as a rule sit at the lower end of the usual four to twelve months.

Every divorce is preceded by the Trennungsjahr (year of separation). Before it is up, a court grants a divorce only in cases of unreasonable hardship (§ 1565 (2) BGB), for instance where there has been serious violence. Those are rare cases, and the court examines them strictly.

Counting on this route rarely pays off. Anyone considering it should settle in the same conversation whether protection from violence or the allocation of the marital home is the faster remedy; both take effect within days, while a hardship divorce remains a full set of proceedings.

The focus of this practice lies deliberately on agreed solutions. That has an equally clear limit. Where the other side blocks, or where an agreement would plainly be at one side’s expense, we represent you in court without hesitation. A settlement is no value in itself where it would only come about because one side gives way.

The work begins by sorting things out. We establish early on what is actually in dispute and what only looks that way; the list frequently shrinks considerably in the process, and the rest can be pursued more precisely.

Where the dispute touches property or business assets, Dietrich Karcher takes responsibility for that side. In an argument over valuation that is the difference between a position and a position you can prove.