The Trennungsjahr: Germany's Mandatory Separation Year

Under German family law, specifically Section 1565 of the Bürgerliches Gesetzbuch (BGB), a divorce can only be granted once the spouses have lived separately for at least one year — the so-called Trennungsjahr (separation year). This mandatory waiting period reflects the German legislature's view that marriage should not be dissolved without giving the parties a genuine opportunity to reconsider, and it applies to virtually all divorces regardless of the circumstances.

The separation does not require one party to move out of the family home immediately, though this is often the simplest way to establish it. German courts have accepted that parties can live separately under the same roof — so-called 'getrennt innerhalb der ehelichen Wohnung' — provided they genuinely maintain separate households: no shared meals, no shared social activities, and separate sleeping arrangements. Establishing and documenting the start date of separation is important, as it determines the earliest date on which a divorce petition can be filed.

One important exception exists. Where the continuation of the marriage would constitute an unreasonable hardship for one party — for example, in cases of serious domestic violence — a divorce may be sought before the one-year period has elapsed. However, this exception is applied narrowly by German courts, and the evidentiary threshold is high. Early legal advice is essential in these circumstances.

Property and Financial Settlement: Zugewinngemeinschaft

The default matrimonial property regime in Germany is the Zugewinngemeinschaft — the community of accrued gains. Under this regime, each spouse retains ownership of their individual assets during the marriage, but upon divorce, the gains accumulated by each spouse during the marriage are equalised. The spouse who accumulated more gains during the marriage pays the other spouse a Zugewinnausgleich — an equalisation payment — equal to half the difference between the two spouses' net gains.

The Zugewinn calculation requires a precise valuation of each spouse's assets at two points in time: the date of marriage (the Anfangsvermögen) and the date of service of the divorce petition (the Endvermögen). Assets inherited or received as gifts during the marriage are generally excluded from the calculation, though income generated by inherited assets may be included depending on the circumstances.

For high-net-worth individuals, business owners, and those with complex asset structures including real estate, shareholdings, pension entitlements, and foreign assets, the Zugewinnausgleich calculation can become highly contested. Valuations of private companies and professional practices are particularly contentious. LexBerg regularly instructs specialist valuers and forensic accountants to support Zugewinn claims and to scrutinise the opposing party's asset declarations.

Child Custody: Sorgerecht and Umgangsrecht

German family law distinguishes between Sorgerecht (parental responsibility/custody) and Umgangsrecht (contact rights). Sorgerecht encompasses the right and responsibility to make decisions about a child's life — education, healthcare, place of residence, and religious upbringing. Umgangsrecht governs the right of a parent and child to maintain a personal relationship through regular contact.

Where parents were married at the time of the child's birth, or have jointly recognised parental responsibility, they generally share joint Sorgerecht — gemeinschaftliches Sorgerecht — regardless of their separation or divorce. German courts are strongly disinclined to remove joint parental responsibility from either parent unless there is a clear, evidence-based reason why it would harm the child's wellbeing to maintain it. The presumption is firmly in favour of continued co-parenting.

Umgangsrecht — contact — is treated as a right of both the child and the non-resident parent. German courts will generally enforce contact arrangements and, in cases where one parent obstructs contact without good reason, sanctions including fines and ultimately changes to the residence arrangement are available. Where one parent wishes to relocate abroad with the children — a situation LexBerg handles frequently in its international client base — the legal framework is particularly complex, and early legal intervention is essential.

In contentious custody and contact disputes, the Jugendamt (Youth Welfare Office) plays a significant advisory role. The Jugendamt represents the interests of the child before the family court and provides a welfare report that carries considerable weight in judicial decision-making. Understanding how to engage constructively with the Jugendamt — and how to address its concerns — is an important part of effective family law representation in Germany.

Maintenance: Kindesunterhalt and Ehegattenunterhalt

German law imposes a legal obligation to pay child maintenance (Kindesunterhalt) on the non-resident parent. The amount is determined primarily by reference to the Düsseldorfer Tabelle — a nationally recognised table published annually by the Düsseldorf Court of Appeal that sets maintenance levels based on the paying parent's net income and the child's age.

Child maintenance is not subject to agreement between the parents; it is a right of the child that cannot be waived. Even where parents agree between themselves not to pursue maintenance, the child's independent right remains enforceable. Significant income concealment by a paying parent — a not uncommon problem — can be challenged through the courts, and the burden of full financial disclosure in German family proceedings is taken seriously.

Spousal maintenance (Ehegattenunterhalt) is treated very differently. The German legislature significantly reformed the spousal maintenance rules in 2008, fundamentally shifting the emphasis from long-term dependency to self-sufficiency. Today, post-divorce maintenance is generally limited in duration and scope, and the courts expect both parties to achieve financial independence within a reasonable period. Exceptions apply where a spouse has significantly curtailed their career to care for children or other family members — the so-called Betreuungsunterhalt — or where severe illness prevents the receiving spouse from working.