Germany
Sources of Law
Civil Law- The primary sources of German family law are found in the Fourth Book of the Civil Code.
Jurisdiction
Brussels II applies.
Domicile and Habitual Residence
Section 7 of the German Civil Code defines domicile/residence
(1) A person who abides regularly in a place establishes his residence in that place (2) The residence may exist simultaneously in several places (3) The residence is discontinued if the abode is abandoned with the intention of discontinuing it.
Conflict of Law/Applicable Law to be Applied
Common habitual residence or last common habitual residence if one spouse still resides there.
Common nationality or last common nationality if one spouse still retains it.
Closest connection.
Possibility to choose applicable law if the spouses do not have common nationality.
Pre-Nuptial Agreements
Enforceable in certain limited circumstances.
Divorce
Sole ground irretrievable breakdown of marriage.
A separation of 1 year with consent establishes the ground. A separation of 3 years is required in the absence of agreement.
Finances/Capital/Property
Separate property regime.
Gains acquired during the marriage will be spilt 50/50 between the parties upon divorce
Pre- marital assets and inherited wealth is excluded from such splitting.
A pension is compulsorily shared on divorce in the proportion the length of the marriage bears to the period during which the pension was built up.
Finances/Maintenance
Basic principle is that the parties have responsibility for themselves.
If one party is unable to provide for themselves and the other party is able to pay then limited maintenance payments will be made.
The primary carer for the children is expected to return to work once the youngest child has reached the age of 3 and as long as other care for the children is available.
To facilitate applications to vary maintenance there is an ongoing disclosure requirement.
Child Maintenance
Jurisdiction in relation to maintenance disputes is vested in the family courts.
The Guidelines of the individual Courts of Appeal, which are amended regularly, fixes the minimum amounts payable to a minor depending on the age of the child and the income of the parent.
Cohabitants
The protection offered by the Federal Constitution to the institutions of marriage and family is denied when couples choose to cohabit without marriage.
Civil Partnership/Gay Marriage
Lebenspartnerschaft (life partnership).
Registration at a registry office.
Matrimonial property regime applies but differs from that for opposite sex couples.
With thanks to Werner U Martens of Pollzien, Martens & Graf, Ohmstrasse 7, 80802 Munich, Germany info@lawoffice-munich.de
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