German Family Law

Constitutional Framework

German family law (Familienrecht) is grounded in Article 6 of the Grundgesetz (GG), the Basic Law of 1949, which places marriage and the family under the special protection of the state. Article 6(1) provides that the state shall protect and promote marriage and the family, imposing a positive obligation on the legislature to create conditions favourable to family life and a negative obligation to refrain from measures that harm the family. Article 6(2) recognises the natural right of parents to the care and upbringing of their children as both a right and a duty, with the state authorised to supervise its exercise. Article 6(5) mandates that children born outside marriage enjoy the same conditions for physical and intellectual development as children born within marriage, a provision that prompted the gradual dismantling of discriminatory legislation over successive decades.

The Federal Constitutional Court (Bundesverfassungsgericht) has developed a substantial jurisprudence on the protection of marriage and the family. In a series of decisions, the Court has held that Article 6(1) does not require identical treatment of marriage and other forms of partnership but prohibits the state from disadvantaging marriage relative to other forms of social arrangement and requires the state to promote family life through taxation, social welfare, and housing policy. The Life Partnership Act (Lebenspartnerschaftsgesetz) of 2001, which created a registered life partnership (eingetragene Lebenspartnerschaft) for same-sex couples, was upheld by the Constitutional Court in 2002, and the Court subsequently required the legislature to equalise the rights of registered life partners with those of married couples in a series of incremental decisions covering inheritance tax, spousal maintenance, property regimes, and adoption.

The Marriage for All (Ehe für alle) law, effective from 1 October 2017, amended the BGB to provide that marriage may be contracted by two persons of the same or different sexes. Article 6(1) GG now applies equally to same-sex and opposite-sex marriages. Registered life partnerships were not retrospectively converted but may be converted into marriage by declaration; no new life partnerships may be formed. The reform was preceded by a substantial body of European Court of Human Rights jurisprudence, including Schalk and Kopf v Austria (2010), requiring member states to provide some form of legal recognition for same-sex couples.

Requirements for a Valid Marriage

The substantive requirements for a valid marriage are set out in the BGB, §§ 1303-1312. The capacity to marry (Ehemündigkeit) is attained at the age of majority, eighteen years under § 1303. A minor aged sixteen or seventeen may marry with the consent of a family court (Familiengericht) and of the minor’s legal representatives, but only if the intended spouse is of full age. The prohibited degrees of relationship (§ 1307) preclude marriage between persons related by blood in the direct line (parent-child, grandparent-grandchild) and between siblings, including half-siblings. Marriage between persons related by affinity in the direct line (a person and a former spouse’s parent or child) is also prohibited unless the relationship giving rise to the affinity has been terminated. Bigamy is prohibited by § 1306: no person may marry while already married or in a registered life partnership.

The formal requirements for marriage are governed by the Personenstandsgesetz (Civil Status Act). Marriage is solemnised by the declaration of the parties before a registrar (Standesbeamter) that they wish to enter into marriage with each other. The declaration must be made personally and in the presence of each other. The registrar must examine the identity of the parties, confirm the absence of impediments, and record the marriage in the civil status register (Eheregister). Religious ceremonies may take place only after the civil ceremony; a marriage conducted solely through a religious ceremony without prior civil registration is invalid.

Dissolution of Marriage

Divorce (Scheidung) is governed by the BGB, §§ 1564-1587. Germany adopted a pure no-fault divorce system through the First Act on the Reform of Marriage and Family Law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) of 1976, effective from 1 July 1977. The sole ground for divorce is the failure of the marriage (Scheitern der Ehe), defined in § 1565(1) as the irretrievable breakdown of the marital community such that the restoration of a marital partnership cannot be expected.

The legislature has established evidentiary presumptions based on the period of separation. Under § 1566(1), a marriage is irrebuttably presumed to have failed where the spouses have lived apart for one year and both apply for divorce or the respondent consents. Under § 1566(2), a marriage is irrebuttably presumed to have failed where the spouses have lived apart for three years, regardless of consent. In the absence of these presumptions — typically where one spouse opposes the divorce and the parties have been separated for less than three years — the applicant must prove the failure of the marriage.

A hardship clause (Härteklausel) under § 1568 permits the court to refuse a divorce where the dissolution would cause exceptional hardship to the respondent on account of the respondent’s age, health, or other compelling circumstances, or where the interests of a minor child of the marriage require the continuation of the marriage. The hardship clause is strictly construed and rarely applied; it operates only in extreme circumstances and may not be invoked indefinitely.

Financial Orders on Divorce

German law provides for three principal financial mechanisms on divorce: the equalisation of accrued gains, pension equalisation, and post-marital maintenance.

The equalisation of accrued gains (Zugewinnausgleich) under §§ 1372-1390 BGB applies to marriages subject to the statutory community of accrued gains (Zugewinngemeinschaft), which is the default matrimonial property regime unless the spouses have contracted otherwise. Under this regime, each spouse’s pre-marital property and property acquired during the marriage remains that spouse’s individual property, but any increase in value (the accrued gain) is shared equally. The calculation compares each spouse’s initial assets (Anfangsvermögen) with their final assets (Endvermögen) at the time of divorce; the spouse with the larger accrued gain owes one-half of the difference to the other spouse.

Pension equalisation (Versorgungsausgleich) under the Versorgungsausgleichsgesetz (VersAusglG) provides for the equal division of pension entitlements acquired during the marriage. Each spouse’s entitlements to statutory pensions (gesetzliche Rentenversicherung), occupational pensions (betriebliche Altersversorgung), and private pensions (private Altersvorsorge) accrued during the marriage are pooled and divided equally. The Federal Court of Justice (Bundesgerichtshof) has held that professional degrees and licences acquired during marriage do not constitute assets subject to equalisation, though the supporting spouse may claim compensation through post-marital maintenance.

Post-marital maintenance (nachehelicher Unterhalt) under §§ 1569-1586 BGB is governed by the principle of self-responsibility (Eigenverantwortung): each spouse is expected to support themselves after divorce. Maintenance is available only in specified circumstances: the care of a child of the marriage (§ 1570); old age (§ 1571); illness or disability (§ 1572); or unemployment (§ 1573). The standard of living during the marriage serves as the benchmark for calculating maintenance. A spouse who has been disadvantaged by the marital division of labour may claim maintenance to obtain further education or training (§ 1575). The duration of maintenance depends on the circumstances, with the care-based maintenance claim under § 1570 lasting at least three years after birth and extending longer where consistent with fairness.

Children

Parental care (elterliche Sorge) under §§ 1626-1698b BGB encompasses both the right and the duty of parents to care for and raise their minor children. The principle of joint parental care applies during marriage and survives separation and divorce under § 1626a. Since the 1998 reform of parental law, unmarried parents may acquire joint parental care by declaration or by court order if this serves the child’s welfare. Section 1631(2) BGB expressly establishes the child’s right to upbringing without violence (Recht auf gewaltfreie Erziehung): corporal punishment, psychological injury, and other degrading measures are prohibited.

The right of access (Umgangsrecht) is framed as the child’s right to have contact with both parents under § 1684(1) BGB. Both parents are entitled to have contact with the child, and both are obliged to refrain from anything that would impair the child’s relationship with the other parent. The family court (Familiengericht) may regulate access where the parents cannot agree, and may restrict or exclude access where necessary for the child’s welfare.

The paramountcy of the child’s welfare (Kindeswohl) is the guiding principle in all children proceedings. The family court has broad powers, including the authority to order the participation of the youth welfare office (Jugendamt) or to appoint a procedural guardian (Verfahrensbeistand) to represent the child’s interests. In public law proceedings involving child protection, the family court may make orders restricting or removing parental care where the child’s welfare is endangered and the parents are unwilling or unable to address the danger, consistent with the principle of proportionality and the state’s role as a guardian (Wächteramt) under Article 6(2) GG.

The 2021 reform of the law on parental care and access modernised the provisions on joint parental care for unmarried parents, strengthened the rights of grandparents and other relatives to maintain contact with the child, and clarified the criteria for the family court’s decision-making, including the requirement that the court hear the child personally from the age of fourteen and consider the child’s wishes.