German Marriage and Divorce Law

Marriage Requirements

German marriage law is codified in Book 4 of the Burgerliches Gesetzbuch (BGB, Sections 1297-1588), supplemented by the Marriage Act (Eheschliessungsgesetz, EheSchlG). The Marriage for All (Ehe fur alle) legislation, effective 1 October 2017, opened marriage to same-sex couples, placing them on an equal legal footing with different-sex couples.

Formation of marriage requires: (1) a declaration of marriage (Eheschliessung) before a registrar (Standesbeamter); (2) the presence of both parties simultaneously; and (3) the declaration that they wish to enter into marriage with each other (Section 1310 BGB). Religious ceremonies may follow but have no legal effect. The marriage must be declared in the presence of a registrar; failure to comply renders the marriage void unless there are exceptional circumstances.

Capacity to marry requires: majority (age 18) — the BGB prohibits marriage of minors under 18, following the 2017 reform that raised the minimum age from 16 with judicial approval. Persons already married may not remarry (prohibition of bigamy, Section 1306 BGB). Certain relationships are prohibited: direct lineal relatives (parent-child, grandparent-grandchild) and full and half siblings may not marry (Section 1307 BGB). Marriage requires free will; forced marriages are voidable and constitute a criminal offence under Section 237 StGB.

Void and voidable marriages: A marriage is void if it violates fundamental requirements — bigamy, prohibited degrees of relationship, or lack of the required form. The family court declares voidness by application. A marriage may be voidable (anfechtbar) if entered into under threat, fraud, or mistake as to the identity of the spouse or the nature of marriage. The right to contest is time-limited.

The Zerruttungsprinzip (Breakdown Principle)

German divorce law is based on the breakdown principle (Zerruttungsprinzip), codified in Sections 1564-1568 BGB. Since the 1976 reform of marriage and family law, fault is irrelevant to the grant of divorce. The only ground for divorce is the failure of the marriage (Scheitern der Ehe). Section 1565(1) BGB provides that a marriage is dissolved by court decree upon application of one or both spouses if the marriage has failed.

A marriage is deemed to have failed (gescheitert) when the marital partnership no longer exists and it cannot be expected that the spouses will restore it (Section 1565(1) BGB). The court must be satisfied that the spouses have lived apart for at least one year and that both spouses apply for divorce or one spouse consents. Where the spouses have lived apart for three years, the marriage is irrefutably presumed to have failed; divorce is granted regardless of the other spouse’s objections (Section 1566(2) BGB).

The hardship clause (Harteilausel) in Section 1568 BGB provides an exceptional ground for refusal: divorce may be refused if the dissolution would create such exceptional hardship for the respondent spouse due to special circumstances that maintaining the marriage appears necessary, even if the marriage has failed. The court must balance the interests of the spouses, particularly the welfare of minor children. The hardship clause is rarely applied.

Separation period: Spouses must live apart for at least one year before a contested divorce may be granted. Separation (Trennung) is defined in Section 1567 BGB as the cessation of the domestic partnership; a spouse living separately within the marital home satisfies the requirement if the separation is evident. The separation period may be reduced to six months in exceptional hardship cases where the other spouse consents.

Maintenance After Divorce

Post-marital maintenance (nachehelicher Unterhalt) is governed by Sections 1569-1586 BGB. The principle of self-responsibility (Eigenverantwortung) underlies the maintenance framework: after divorce, each spouse is expected to support themselves. Maintenance is available only in specific statutory situations.

The grounds for maintenance include: (1) care of a child of the marriage (Section 1570 BGB); (2) advanced age (Section 1571 BGB); (3) illness or disability (Section 1572 BGB); (4) unemployment (Section 1573 BGB); (5) education or training (Section 1575 BGB); and (6) hardship for the period between divorce and first employment. The duration and amount depend on the circumstances, including the length of the marriage, the spouses’ standard of living, and the care of children.

The Durational limit (Befristung) introduced by the 2008 reform of maintenance law (Unterhaltsrechtsanderungsgesetz) permits courts to limit maintenance in duration or amount where it would be inequitable to require indefinite support. The reform strengthened the principle of self-responsibility and reduced the primacy of marital living standard.

Marital Property Regimes

German law recognises three marital property regimes (guterrechtliche Verhaltnisse): the statutory community of surplus (Zugewinngemeinschaft), separation of property (Gutertrennung), and community of property (Gutergemeinschaft). The default regime is the Zugewinngemeinschaft (Sections 1363-1390 BGB).

Under the Zugewinngemeinschaft, each spouse retains separate ownership of their assets during marriage. Upon divorce, the surplus (Zugewinn) acquired during the marriage is equalised. The calculation compares each spouse’s initial assets (Anfangsvermogen) with their final assets (Endvermogen) at the time of divorce. The spouse with the greater surplus pays half the difference to the other spouse. The equalisation claim is a monetary claim; no physical transfer of assets occurs.

Separation of property (Gutertrennung): each spouse’s assets remain entirely separate; no equalisation upon divorce. This regime requires a notarial agreement. Community of property (Gutergemeinschaft): all assets become jointly owned; this regime is uncommon and requires a notarial agreement.

Versorgungsausgleich (Pension Equalisation)

The pension equalisation (Versorgungsausgleich), governed by Sections 1-77 of the Act on the Equalisation of Pension Rights (Versorgungsausgleichsgesetz, VersAusglG), is a mandatory element of German divorce proceedings. The court equalises the pension rights acquired by each spouse during the marriage, including statutory pensions, occupational pensions, and private pensions.

The court determines the pension rights (Anrechte) acquired by each spouse during the marriage period (from the date of marriage to service of the divorce petition). Each spouse must disclose all pension rights. The court compares the pension values and orders the transfer of rights from the spouse with the higher value to the spouse with the lower value. The transfer is effected by splitting the pension rights (interne Teilung) or, if the pension scheme does not permit internal division, by an external transfer (externe Teilung) or, as a last resort, by a compensatory payment in money (schuldrechtlicher Ausgleich).

The equalisation takes effect automatically upon divorce; the court must decide on the Versorgungsausgleich even if the spouses have reached an agreement. Spouses may opt out of the equalisation only by notarial agreement. The BVerfG has repeatedly addressed the constitutionality of the equalisation rules, particularly concerning divorced spouses who later remarry and the minimum periods for equalisation.