Amicable divorce in Germany – “einvernehmliche Scheidung”

Einvernehmliche Scheidung: Understanding Amicable Divorce in Germany

Divorce can be a challenging and emotional experience, but in Germany, an amicable divorce process, known as “einvernehmliche Scheidung,” offers a less adversarial and less expensive approach. This article provides a comprehensive overview of what an amicable divorce entails, its benefits, and the steps involved in achieving it.

What is an “Einvernehmliche Scheidung”?

“Einvernehmliche Scheidung” translates to “amicable divorce” and refers to a divorce where both spouses agree on all key issues, such as the division of assets, child custody and support, and spousal support. This type of divorce is typically faster, less costly, and less stressful than a contested divorce (strittige Scheidung).

Benefits of an Amicable Divorce

  1. Reduced Conflict:
  • An amicable divorce minimizes conflict between spouses, making the process smoother and less emotionally draining.
  • It promotes a cooperative approach to resolving issues, which can be particularly beneficial if children are involved.
  1. Cost-Effective:
  • Since both parties agree on the terms of the divorce, legal fees and court costs are significantly reduced.
  • In many cases, couples can share a lawyer, further reducing expenses.
  1. Faster Resolution:
  • An amicable divorce typically takes less time to finalize compared to a contested divorce, where disputes can prolong the process.
  • The streamlined process allows both parties to move forward with their lives more quickly.
  1. Privacy:
  • Resolving issues out of court ensures that personal matters remain private, as opposed to contested divorces where details can become part of the public record.

Requirements for Einvernehmliche Scheidung

  1. Mutual Consent:
  • Both spouses must agree to the divorce and all related issues, including child custody, support, and the division of assets.
  • Any disagreements must be resolved before filing for divorce.
  1. Separation Period:
  • German law requires a separation period of at least one year (Trennungsjahr) before a divorce can be granted. During this time, spouses must live separately.
  • Separation can occur within the same household if the spouses maintain separate lives, such as sleeping in different rooms, not sharing meals, and managing finances independently.

Steps to Achieve an Amicable Divorce

  1. Separation:
  • The separation period is crucial for demonstrating that the marriage has irretrievably broken down.
  • Both spouses should document the separation date and the steps taken to live independently.
  1. Agreement on Key Issues:
  • Spouses must reach an agreement on all key issues, including:
    • Division of assets and debts
    • Child custody and visitation arrangements
    • Child and spousal support
  • These agreements should be documented in a written settlement (Scheidungsfolgenvereinbarung) to be presented to the court, although it is not mandatory.
  1. Legal Representation:
  • Since both spouses can share a lawyer, it is not necessary for each party to hire an attorney, thereby cutting the costs for legal representation in half.
  • The lawyer will prepare and file the divorce petition (Scheidungsantrag) with the family court (Familiengericht).
  1. Filing the Divorce Petition:

Requirements for an Amicable Divorce

In the case of an amicable divorce, the following documents must be submitted to the court:

  • A copy of the marriage certificate,
  • The children’s birth certificates.

Those certificate, if they are not in German, must be provided to the court togehter with a translation by a professional translator, who is certified in Germany.

Additionally, the application must inform the court that:

  • The marriage of the parties has failed,
  • The parties have been living separately for over a year,
  • Marital cohabitation has ceased since the separation,
  • The other party also desires the divorce and is likely to consent to the divorce petition.

This leads to an irrebuttable presumption of the failure of the marriage, as per Section 1566(1) of the German Civil Code (BGB).

The application must also include a statement that the spouses have agreed on the consequential matters as per Section 133(1) No. 2 of the Family Procedure Act (FamFG), specifically regarding:

  • Custody of the children,
  • Visitation rights of the father,
  • Child support,
  • Post-divorce spousal support,
  • The marital home and household goods,
  • And that no other family matters are pending (Section 133(1) No. 3 FamFG).

Or, if an agreement on these matters is lacking,

  • that an agreement on the consequential matters as per Section 133(1) No. 2 FamFG has not yet been reached,
  • that no other family matters are pending (Section 133(1) No. 3 FamFG).

The divorce petition, along with the settlement agreement, is submitted to the family court.

The court reviews the documents and schedules a hearing to confirm the agreement and the separation period.

  1. Court Hearing:
  • Both spouses must attend the court hearing, where the judge will verify the separation period and ensure that both parties voluntarily agree to the divorce terms.
  • If everything is in order, the court will issue the divorce decree (Scheidungsurteil).

An amicable divorce, in German: “einvernehmliche Scheidung”, offers a less stressful and efficient way to end a marriage in Germany. By agreeing on key issues and working cooperatively, spouses can minimize the emotional and financial toll of divorce. If you are considering an amicable divorce, understanding the process and seeking appropriate legal advice can help you achieve a fair and smooth resolution.

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