Divorce and separation regulation chapter 5 de

National law – DE– Legal system – module 5

Example for the calculation of the duration of the marriage: the marriage period refers to the period between the marriage and the divorce application. It is not important how long persons before or since have lived together in an unmarried relationship (Baumann 2017).

In Germany a married couple can generally only file for divorce if the couple were separated for at least one year before (“Year of separation”, “Trennungsjahr”) the couple files for divorce (Baumann 2017).

During this “cooling off period” spouses are legally obliged to pay each other spousal support, again in relation to their own means and their own ability to work and to earn money.

If one spouse doesn´t want the divorce, he is not able to stop it from happening. After three years of separation the marriage is generally considered to be „irretrievably broken.“

The spouses are not automatically obligated to pay spousal support in the year of separation. Thus, the receiving spouse has to claim the spousal support from the other spouse.

Generally the spouse with the lower income is entitled to receive spousal support during the year of separation.

After the divorce spouses may be obliged to pay post-marital spousal support to the other spouse.

Since this obligation is different from the obligation to pay spousal support during the year of separation, a new claim has to be made by the spouse in need.

However, after the divorce generally the principle of personal responsibility applies. In the last years the courts in Germany became very strict to apply the principle of personal responsibility. Thus, each spouse is generally responsible for his own maintenance and cannot rely on the spousal payments for very long.

However, in many situations there is still a chance to get post-marital spousal support..

Compensation for the increase in communal property (“Zugewinnausgleich”)

If no notarised marriage contract has been set up by the spouses, each party is entitled after the divorce to be compensated for half of the capital value of the assets acquired by the spouses during the marriage.

This procedure is called “Zugewinnausgleichsverfahren” The “Zugewinn” (gain) is the positive difference (gain) between the value of the property of each spouse before the marriage and its value and at the end of the marriage.

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