1. An overview of the divorce system in contemporary Germany
Divorce in German law refers to the dissolution of a marriage facing the future by a court decision based on certain reasons for divorce. It differs from annulment of marriage, where the cause of annulment is due to defects present at the time of marriage, whereas the cause of divorce is what happens after the marriage.
Germany's Reform Law No. 1 of 1976 defined "irretrievable breakdown of marriage" as the only ground for divorce, i.e. "breakdown of marriage". In addition, German law does not distinguish between divorce by mutual agreement and divorce by litigation, let alone the reasons for adjudicating divorce by way of enumeration. If the mental and psychological foundations of the marriage have irretrievably broken down for one or both spouses, that fact in itself can lead to the dissolution of the marriage, irrespective of whether there is fault. The party who is at fault for the breakdown of the marriage can also file for divorce. The court determines whether a marriage has broken down based on the number of years of separation between the husband and wife. However, for the benefit of the minor children, if the divorce will have a great impact on them, the judge can still decide not to divorce even if the marriage has broken down.
There are two important legal effects arising from divorce: (1) maintenance after divorce. Prior to 1 July 1977, only the spouse who was responsible for the divorce had a post-divorce obligation to maintain the spouse. After the reform, the rights and obligations of maintenance are no longer determined by the responsibility of the spouses for the cause of the divorce, but only by the need and ability to support each other after the divorce. The 2008 reforms aim to strengthen the duty of self-care after divorce, and the court may impose a certain period of time on the maintenance obligation after divorce, or may limit the amount of the obligation to encourage the parties to become self-reliant at an early stage. (2) The right to claim the distribution of pensions. If only one of the spouses is working outside the home and the other spouse is engaged in household work and taking care of the children, only the spouse who works outside the home is entitled to pension protectionThere is no equivalent protection for the spouse who is engaged in household chores except that he or she can still claim support from the spouse during his or her lifetime. Therefore, when the Marriage Act was amended for the first time, German law created the "right to claim pension", whereby the annuity or retirement pension obtained by one spouse as a result of work during the marriage relationship should be shared with the spouse of the other spouse who does not have such pension or pension.
The Maintenance Modification Act of 1986 imposes certain restrictions on the right to claim maintenance after divorce, such as providing for an equitable clause in section 1579, expanding the grounds for refusal or reduction of maintenance from four to seven. With regard to differential maintenance, the Law on Variation of Dependency adopts the idea of a time limit, i.e., a time limit is set for the above-mentioned claims for maintenance arising from unemployment or insufficient income.
2. Conditions and procedures for divorce in contemporary Germany(1) The legal requirements for divorce
The legal conditions for divorce in Germany can be divided into the legal conditions for non-consensual divorce and the legal conditions for unagreed divorce.
1.Statutory conditions for non-consensual divorce
1) Abandon the principle of fault and make the breakdown of marriage a legal condition for granting divorce. Since 1977, Germany has abandoned the fault principle in favour of the breakdown principle as a legal condition for divorce. Whether or not a divorce petition can be granted depends entirely on the breakdown of the marriage;It is not a question of which party is responsible. The current law defines "breakdown of marriage" (1st sentence of Article 1565 of the "Demin") as the sole cause of divorce. According to the second sentence of paragraph 1 of article 1565, a marriage breaks down when the spouses have ceased to live together and cannot be expected to return to living together. The concept of "termination of marital cohabitation" refers to the total cessation of cohabitation, and this concept must be distinguished from "cessation of family cohabitation" or "separation" (article 1567 of the "Takmin").
According to the conditions for divorce set out in the second sentence of § 1565 paragraph 1 of the German Civil Code, when hearing a divorce case, the family court must examine the degree of breakdown of the marital relationship in a comprehensive manner and estimate the probability of reconciliation between the parties accordingly (substantive law breakdown review). The Family Court must analyse the internal circumstances of the marriage and, accordingly, the chances of reconciliation for both parties. A marriage breaks down if, after examination, the court finds that at least one spouse does not want to continue living with the other spouse.
2) The presumption of marital breakdown. With regard to the other elements of divorce, the application of § 1565 paragraph 1 sentence 2 of the German Civil Code requires an in-depth examination of the internal relations of the husband and wife, which may involve too much intimate marital intimacy. Therefore, the law provides for two separate elements of divorce, so that the court can judge whether the marriage has broken down through some external characteristics that are easy to determine: first, if the spouses have been separated for more than one year, and both parties apply for divorce or the party to whom the application has agreed to the divorce, the marriage can be irrefutably presumed to have broken down. Secondly, if the spouses have been separated for more than three years, there is also an irrefutable presumption that the marriage has broken down. (Article 1566 of the "German People").
Thus, the cause of divorce (marital breakdown) can be expressed in three constitutive elements of divorce: the second sentence of paragraph 1 of § 1565 of the German Civil Code stipulates the basic elements of marital breakdown, and the court must determine whether the marriage has irretrievably broken down on the basis of subjective and objective circumstances;Paragraphs 1 and 2 of Article 1566 provide for two presumptions of rupture. As long as any of the above three constituent elements of divorce are present, the cause of divorce can be achieved, and the three constituent elements are a relationship that exists side by side.
and 3) obstacles (or limitations) to divorce. According to §§ 1565 para. 2 and § 1568 of the German Civil Code, divorce is subject to obstacles (or limitations) even if the marriage has broken down;The statutory requirement of one year of separation (Article 1565, paragraph 2) and unfair terms (Section 1568) must be met. The functions of the two defences are different: the unfair clause under section 1568 applies only if the marriage has broken down;Article 1565, paragraph 2, is itself one of the conditions for a rupture review.
2.Conditions for Divorce by Mutual Agreement
If both spouses agree to divorce, in the case of divorce by mutual agreement, it is presumed that the marriage has broken down with certainty and doubt. According to § 1566 paragraph 1 of the German Civil Code, a divorce application may be granted if (1) the spouses have been separated for more than one year and (2) both parties have agreed to the divorce.
(2) Procedures for divorce
In Germany, divorce can only be achieved on the application of one or both spouses and by the approval of a judge (§ 1564 "Deremin"). When the judgment becomes res judicata, the marriage is dissolved. Under certain conditions, there are also subsequent effects of divorce (such as the right to claim maintenance, gain compensation, retirement annuity compensation, division of household appliances and matrimonial residence, etc.). Since 1 September 2009, divorce proceedings are no longer regulated by the German Code of Civil Procedure, but by the German Procedural Act on State and Non-Litigation Matters.
The merger of divorce and subsequent matters (incidental matters) is a special regime in divorce proceedings. The German Reform Act No. 1 of 1976 consolidated divorce cases with subsequent cases, with the aim of making the legal consequences of divorce clear to spouses in the divorce process and preventing hasty divorce. In practice, mergers help to protect the interests of the economically weaker party. This merger allows the divorce and the important consequences of the divorce to be dealt with and adjudicated in the same process. Retirement pension compensation is generally available for joinder without application (§ 137 para. 2 sentence 2 of the German Code of Procedure for State and Non-Contentious Matters);The court will initiate the courtesy proceedings by virtue of its power and incorporate them into the divorce proceedings (§ 137 para. 2 sentence 1 (1) of the German Code of Procedure for Matters of State and Non-contentious Matters). Whether or not the other consequences of divorce are consolidated depends in principle on the conduct of the parties, i.e. whether the parties request a timely adjudication of matters that must be adjudicated in the event of divorce (§ 137 para. 2 (1) sentence 1 of the German Procedural Act on Matters of State and Non-Litigation Matters).
Family events that are incorporated into the divorce process are known as subsequent events. Follow-up events include procedures for retirement annuity compensation, maintenance procedures (including statutory maintenance obligations for joint children, or legal maintenance obligations created by marriage), claims on matrimonial property regimes (e.g. gain compensation) and procedures for matrimonial homes and household appliances. Specific child events, in particular care and association procedures, may also be follow-on events. The court decides on the divorce application together with the subsequent events by ruling (§§ 137 para. 2 and § 142 para. 1 of the German Procedural Act on Matters of State and Non-contentious Matters).
III. The Legal Consequences of Divorce in Contemporary Germany
(1) The responsibility for the repayment of marital debts and the division of marital property at the time of divorce
1.Debt settlement
In Germany, when calculating the right to claim compensation in divorce, the property gain of one spouse is the amount of the final property exceeding the initial property, so the gain cannot be negative, which means that the debts of one spouse are borne by himself in principle, and if the debt is greater than the assets, it cannot be borne by the other party through the gain balance system. Only in exceptional circumstances, such as the husband and wife agree on a general community of property, daily family affairs, or express joint debts, will there be joint debts.
2.Division of property
As mentioned earlier, the legal matrimonial property regime in Germany is called joint ownership and in fact separate ownership. In principle, the property of the husband and wife during the marriage shall be managed separately and the debts shall be borne separately. At the end of the legal property system, the value of the respective property at the beginning of the property gain community system shall be determined by the amount of the increase in value, and compensation shall be made between the parties. In other words, when the parties divorce, only the liability for compensation under the law of obligations arises, and there will be no "division of joint property between husband and wife" similar to the meaning of the property law stipulated in the Civil Code of China, unless the parties agree to adopt the general co-ownership system.
3.Gift Return
Rather than joint debts and division of property, German theory and practice are more concerned with whether the spouses can recover property gifts during the marriage that exceed the meaning of the usual gifts, after the breakdown of the joint life. This kind of giving is often also reflected in a certain amount of labor payment (e.g., repairing a partner's house, working together in an enterprise). The question then arises as to what legal provisions are used to assert such a right to restitution.
The basic position in the jurisprudence is that the giving, which is generally for the purpose of maintaining a common subsistence, does not have a gratuitous agreement peculiar to gifts, and does not constitute a gift under § 516 et seq. of the German Civil Code. In its judgment, the Federal Supreme Court has tended to treat such grants as "unique legal acts conditional on marriage" or "special family law contracts" based on specific family law relationships. Accordingly, the reason for the grant is a contractual relationship, i.e. the spouses form an internal partnership by implication, which has no joint property and does not have external effect on third parties, but only creates a relationship similar to that of a joint-stock company within the parties. The collaborator is regarded as a shareholder of the enterprise and has the right to participate in the distribution of the company's revenue. However, this right to participate in the distribution does not affect the ownership and property status of the enterprise. At the end of the partnership, i.e. when the divorce petition is filed or the separation begins, the division shall be carried out in accordance with the provisions of Sections 730 to 735 of the German Civil Code. The spouse who provides the collaboration is compensated in the form of money. The amount of compensation shall be determined according to the agreement of the parties and, in the absence of such agreement, shall be divided in equal shares in accordance with paragraph 1 of Article 722.
The court will recognize a partnership only if the spouses have agreed to make joint payments for a purpose beyond what is necessary for their marital life together, such as when the spouses have invested their labour and capital to create a business or to engage in a certain job or occupation. In a 1990 decision, the German Federal Supreme Court extended the scope of partnership to situations outside of corporate collaboration. Specifically: the collaboration of one spouse increases the property of the other spouse. A partnership is formed when one of the spouses increases the property of the other spouse through labor or payment in kind, and the following conditions are satisfied: (1) The payment of the spouse is not for the purpose of satisfying the needs of the common life, but for some purpose that goes beyond the needs of the common life. (2) The subjective premise of the conduct of the parties is that, from an economic point of view, the wealth created together does not belong only to the party that is formally owned by the owner, but should be shared by both parties. (3) A partnership can only be deemed to be established if there is at least a contract between the parties that has been concluded by implication and whose content is described above.
If the partnership cannot be recognized in accordance with the above principles, the party may consider the right to claim compensation due to the change in the basis of the transaction (Article 313, Paragraph 1 of the "German People"). According to the Federal Supreme Court, a payment conditional on marriage occurs when one of the spouses acquires property for the purpose of marriage and for the purpose of realizing, establishing, maintaining or securing marital life together, and expects that he or she may share in the property and its fruits during the marriage. The result of such a payment is the right to claim compensation, i.e. the distribution of the value of the property acquired and still held by the other spouse in accordance with the principle of equity.
(2) The distribution of retirement annuity in the event of divorce
Through the pension compensation system, German law extends the principle of community of property gains to other rights to claim, expect and count on pensions arising from old age or incapacity for work (§ 1587 para. 1 sentence 1 of the "German Citizen"), regardless of whether these rights are established under public or private law. It is based on the idea that the pension benefits acquired by one of the spouses during the marriage are the result of a joint effort between the spouses;Thus, one spouse who received a higher value pension during the marriage at the time of divorce is obliged to compensate the other spouse.
Pension compensation was originally provided for in the German Reform Act No. 1 of 1976. The Law on the Structural Reform of Retirement Pension Compensation, adopted on 3 April 2009, provides for a comprehensive revision of retirement pension compensation. The legislator took the core rules out of the German Civil Code and put them into the stand-alone German Retirement Annuity Compensation Act 2009.
1.Pension benefits that need to be compensated
1) Type of interest. Pension rights include both the right to expect future pensions and the right to claim current pensions. Article 2, paragraph 2, of the Retirement Annuity Compensation Act sets out in detail the conditions under which a retirement pension can be claimed under the Retirement Annuity Compensation Rules. The interest to be supplemented must be acquired or retained through labor or property. This excludes the right to a pension based on accident insurance and the right to a pension under civil law for damages due to reduced working capacity (article 843 of the "German People").
Only the right to old age or incapacity for work (e.g. diminished capacity, inability to work, etc.) is covered by pension compensation (Section 2 para. 2 para. 2 para. 2 (b) of the German Pension Compensation Act). This refers primarily to the enumeration of rights under article 1587 based on statutory pension insurance, civil servants' pensions, occupation-related pensions (e.g. doctors' pensions), corporate pensions, and private pensions and labour insurance. This is not substantially different from the legal provisions before the reform.
2) Limited to pension rights acquired during the marriage. Pension rights acquired during the marriage can only be compensated (§§ 1 para. 1, § 3 para. 2 of the German Pension Compensation Act).
2.Retirement annuity compensation is generally implemented in the form of value compensation
In principle, both spouses have an equal share of the economic value received during the marriage, and either spouse has the right to claim half of the other spouse's share of the pension received during the marriage. The law refers to this half of the value as the "compensatory value". This claim can only be fulfilled at the time of divorce.
In the event of a divorce, there are two specific ways in which pension compensation can be implemented: the "internal division" and the "external division" of pension rights. Internal division means that the court directly transfers the pension rights from the compensation obligor to the compensation right holder directly from the bearer of the pension right to be compensated, based on the compensation value. In other words, the compensation holder may become a new "customer" of the pension institution through retirement annuity compensation.
The external division refers to the fact that the court creates rights for the compensation holder in other pension institutions according to the compensation value, which is different from the existing pension institutions. For example, one of the spouses receives pension rights from a corporate pension during the marriage. Internal division means that the right is divided in rem between the spouses, i.e. the other spouse also receives a pension right of equal value to the compensation at the pension institution of the enterprise. The external division means that the compensation right holder does not receive a share of the company's pension, but obtains a pension right equivalent to the compensation value in other pension institutions, such as statutory employee insurance institutions;The cost of the pension right is borne by the obligor, that is, the obligor's pension right in the enterprise insurance institution will be reduced accordingly.
3.The special implementation of retirement annuity compensation is compensation under the law of obligations
In some cases, pension compensation cannot or should not be realized through the creation of a pension right (value compensation), but rather through a "payment of compensation under the law of obligations" (§§ 20-22 of the German Pension Compensation Act): in this form of compensation, the spouse who is obligated to compensate must continue to pay the person entitled to compensation a monthly compensation period equivalent to the value of the compensation.
If a pension right does not have a value compensation at the time of divorce, i.e. it does not reach the level of compensation (section 19, paragraph 6 of the German Pension Annuity Compensation Act), the value compensation may also be replaced by a pension compensation under the law of obligations. In addition, the spouses may agree on their own to pay the debt compensation in lieu of the value compensation. 4.Defences against the right to compensation for retirement annuities
The spouses may exclude retirement annuity compensation by a valid agreement, up to the extent agreed upon, without the occurrence of retirement annuity compensation (§ 6 para. 1 (b) of the German Retirement Annuity Compensation Act"Demin", Article 1408, paragraph 2). If the difference in the value of the compensation between the spouses is small, the court should not consider the compensation (Section 18, paragraph 1, of the German Pension Compensation Act).
If the imposition of compensation appears materially unfair, the court may reduce the value of the compensation or exclude the pension altogether (fair provisions, section 27 of the Pension Compensation Act).
(3) Maintenance after divorce
1.Legislative purpose and system
The basic idea of the German legislator regarding the right to claim maintenance after divorce is that after the divorce, the spouses no longer have the responsibility to live together in principle, and should start a new life separately. Accordingly, the first sentence of § 1569 of the German Civil Code stipulates that, in principle, each spouse shall bear his or her own alimony after divorce. However, from a practical point of view, the Act stipulates the responsibility for maintenance between spouses after divorce in the second sentence of paragraph 1 of article 1353. The legislative intent is to unite the destinies of the parties when they marry with confidence in their future life together;When the joint life breaks down, then their mutual obligations are not extinguished, so that the divorcing spouse can file a claim for alimony against the ex-partner under certain conditions.
Section 1569 of the German Civil Code sets out the conditions for claiming maintenance after divorce: A spouse who is unable to provide for himself or herself after a divorce may only claim maintenance against the other spouse "in accordance with the following provisions". In other words, the requirements for a claim under §§ 1570-1576 of the German Civil Code must be met in order to file a claim for maintenance after divorce. The right to claim maintenance can only be asserted if the person entitled to maintenance is unable to support himself through his or her recipients and property (Article 1577). Article 1578, paragraph 1, of the Act also lays down the basic principle for determining the standard of alimony: alimony includes all subsistence needs and is determined on the basis of marital life, taking into account the ability of the person obliged to pay.
2.The basis and classification of maintenance claims after divorce
1) Support for the care of children. If one of the divorcing spouses is unable to engage in (full-time) employment because of the care and education of the minor joint children, he or she has the right to claim maintenance from the other spouse (article 1570 "Demin"). This claim can arise for three different reasons: Within 3 years of the birth of the child, the divorced parent who is caring for the child has the right to claim maintenance. In accordance with the principle of equity and to the extent thereof, the duration of the maintenance claim may be extended;This is a time to consider the interests of the child and whether there are other possibilities for caring for the child. In the case of child care, occupation in the marriage and the duration of the marriage, this is in line with the principle of fairness, and the right to maintenance can be further extended. The reason for fairness here is not the best interests of the child, but the trust that arises from the marriage (marriage-related reasons) of the parent who cares for the child. In assessing fairness, consideration needs to be given to the division of labour between the parties in the marriage in terms of child care and occupation, as well as the duration of the marriage.
2) Support due to old age. If one of the divorcing spouses is no longer expected to engage in employment because of old age, he or she may request maintenance from the other spouse (article 1571 of the "Tak Min"). This right to claim maintenance is time-limited, i.e. it cannot be expected to be in the professional situation or to appear at: at the time of divorce;At the end of the care or education of the common child;When the elements of the right to claim maintenance under Articles 1572 and 1573 are lost. If the incapacity for work due to old age occurs after the above-mentioned period, the right to maintenance does not arise.
3) Support due to illness. If one of the divorcing spouses is unable to expect him or her to engage in occupation because of illness or other physical or mental disability or infirmity, he or she has the right to claim maintenance from the other spouse to the extent possible (article 1572 "Demin"). The claim must arise from the moment of divorce or other similar moment.
4) Support due to unemployment. If, after the divorce, one of the spouses cannot find a suitable job in the labour market, article 1573, paragraph 1, also stipulates the maintenance requirements, as a catch-all clause: one of the spouses who is unable to obtain suitable employment after the divorce may claim maintenance to the limit. If the person seeking dependency does not make sufficient efforts to find suitable employment, he or she cannot be supported. The basis of the claim in § 1573 para. 1 of the German Civil Code is also time-limited: the inability to find a suitable job must occur "after the divorce". Maintenance payments are required under §§ 1570-1572 and § 1575 of the German Civil Code and these claims are extinguished by the loss of the prescribed elements as a result of the divorce (§ 1573, para. 3).
5) Differential support. A spouse who, despite having engaged in an appropriate occupation, does not earn enough to maintain full maintenance may also claim maintenance (Article 1573, paragraph 2, "Demin"). This "supplemental alimony" or "differential alimony" claim is for the difference between the right holder's income and the total alimony. In practice, if both spouses have income as alimony, the spouse with the lower income receives three-sevenths of the difference in income between the spouses (occupational income). For other gains, one half of the difference is obtained.
6) Support for education, further education or training. Section 1575 of the German Civil Code provides for the right to claim funding for education, further education or training in order to compensate for disadvantages arising from marriage. This right to maintenance is protected by a spouse who is ...... by a spouse in anticipation of the marriage or during the marriagedid not receive or interrupt "school or vocational education". Further education or training received by a divorced spouse to compensate for the disadvantages of the marriage also falls within the scope of the maintenance guarantee. The claim includes all maintenance and training costs, subject to the following restrictions: The right holder must receive the training as soon as possible. The aim of the training is to acquire appropriate occupations that provide a sustainable livelihood. Must have a predictable success in obtaining a diploma in education. The maximum duration of the claim shall be the time normally required for graduation from such education;In this regard, it is necessary to take into account the delay of marriage in education.
7) Maintenance on the basis of fairness. In addition to the above-mentioned special maintenance requirements, § 1576 (1) sentence 1 of the German Civil Code provides for a general right to claim postmarital maintenance: a spouse may claim maintenance from the other spouse if it is not possible to expect him or her to engage in occupation for other serious reasons and it would be unfair to refuse maintenance in the interests of both parties. According to jurisprudence, the right to maintenance under article 1576 arises only in exceptional circumstances;In relation to § 1570 of the German Civil Code, such a request for maintenance is subsidiary.
3.Calculation of the amount of alimony(1) All the needs of life. The total subsistence needs (1578, paragraph 1, 2, 2, 3) of the "Demin" refer to the basic needs of the individual, such as food, clothing, housing and medical care;It also includes recreational and recuperation needs, as well as mental and physical care costs. Alimony also includes medical and nursing care insurance costs, as well as schooling costs. If the divorcing spouse has the right to claim maintenance under §§ 1570-1573 and § 1576 of the German Civil Code, the cost of appropriate insurance in the event of old age and reduced capacity for work is also a subsistence necessity. (2) The standard of alimony. The rate of alimony to be paid is determined on the basis of the marital life situation ("Demin", article 1578, paragraph 1, sentence 1). In principle, the person entitled to maintenance should receive a level of maintenance commensurate with the living situation in the marriage. This level of maintenance is determined by the income status of both spouses. In the calculation of maintenance costs, the spouse who is engaged in the occupation receives a slightly larger share (four sevenths of the income instead of one-half), while for low and middle incomes, the full amount of maintenance provided for in the first sentence of § 1578 paragraph 1 of the German Civil Code is generally more than half of the disposable income of both spouses, since there are two household expenses after divorce. According to section 1581, the right to claim maintenance must be deducted on the basis of equity.
4.Limited capacity to pay
Guarantee of maintenance in accordance with the principle of equity. The obligation to guarantee all maintenance is premised on the obligor's ability to pay. The obligor is only required to make the payment within the limits of fairness, taking into account the needs of both spouses and their professional and property status (1581 sentence 1 of the "Demin"). In jurisprudence, it has been held that the spouses should share equally among the funds available for maintenance (the principle of equal sharing), with an appropriate preference for the spouse who earns income from the profession: the person entitled to maintenance receives only three or two fifths of the income, not one-half;or directly receive the difference in income. According to article 1581 of the Act, the court will determine in practice a minimum amount of funds that the maintenance holder may retain in any case to meet his or her own livelihood (his own needs or his own livelihood), so as to avoid the maintenance obligor becoming the object of social assistance after providing maintenance.
Lawyer Li Benhu is the director of the marriage and family business department of Zhongyin (Nanjing) Law Firm, and a foreign-related divorce lawyer in NanjingRecent foreign-related cases handled by Mr. Li Benhu and his team:
Chen's divorce case (France).
Liu's marriage nullity case (Germany).
Wu's divorce case (Sweden).
Wang's family property dispute (Canada).
Lu's divorce case (Ireland).
Yan's divorce case (Saudi Arabia).
Jiang's divorce case (Canada).
Wang's divorce case (USA).
Gao's foreign divorce judgment was recognized (Germany).
Gao's divorce case (Australia).
Gu's inheritance case (Canada).
Zhang's divorce case (USA).