Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Title 7
Divorce
Subtitle 1
Grounds of divorce
Section 1564
Divorce by judicial decision
A marriage may be dissolved by divorce only by judicial decision on the petition of one or both spouses. The marriage is dissolved when the decision becomes final and absolute. The conditions under which a petition for divorce may be made follow from the following provisions.
Section 1565
Breakdown of marriage
(1) A marriage may be dissolved by divorce if it has broken down. The marriage has broken down if the conjugal community of the spouses no longer exists and it cannot be expected that the spouses restore it.
(2) Where the spouses have not yet lived apart for one year, the marriage may be dissolved by divorce only if the continuation of the marriage would be an unreasonable hardship for the petitioner for reasons that lie in the person of the other spouse.
Section 1566
Presumption of breakdown
(1) It is irrebuttably presumed that the marriage has broken down if the spouses have lived apart for a year and both spouses petition for divorce or the respondent consents to divorce.
(2) It is irrebuttably presumed that the marriage has broken down if the spouses have lived apart for three years.
Section 1567
Living apart
(1) The spouses are living apart if there is no domestic community between them and a spouse recognisably does not intend to create this because he rejects conjugal community. Domestic community also no longer exists if the spouses live apart in the matrimonial home.
(2) Living together for a short period which is intended to reconcile the spouses does not interrupt or suspend the periods laid down in section 1566.
Section 1568
Hardship clause
(1) The marriage should not be dissolved by divorce, although it has broken down, if and as long as the maintenance of the marriage, in the interest of minor children of the family, is, exceptionally, necessary for particular reasons or if and as long as divorce, by reason of extraordinary circumstances, would be such a severe hardship for the respondent, who rejects it, that the maintenance of the marriage, exceptionally, appears to be advisable, even taking into account the concerns of the petitioner.
(2) (repealed)
Subtitle 1a
Treatment of the marital home and of the household objects on the occasion of divorce
Section 1568a
Matrimonial home
(1) One spouse may demand that the other spouse assign to him the matrimonial home on the occasion of divorce if he is more dependent on using it, taking account of the best interests of the children living in the household and of the circumstances of the spouses, than the other spouse, or if such assignment is equitable for other reasons.
(2) If one spouse, alone or together with a third party, is the owner of the plot of land on which the matrimonial home is located, or if one spouse, alone or together with a third party, has a usufruct, the heritable building right or a residential right in rem in the plot of land, the other spouse may only demand that it be transferred if this is necessary to avoid an inequitable hardship. The same applies to the ownership of an apartment and a permanent residential right.
(3) The spouse to whom the home is left
1. at the time of receipt by the landlord of the spouses’ notification of transfer, or
2. on entry into force of the decision on the procedure to allocate the home
enters into a tenancy in place of the spouse obliged to effect the transfer into which the latter entered, or alone continues a tenancy relationship entered into by both. Section 563 (4) applies with the necessary modifications.
(4) A spouse may only demand the establishment of a tenancy relationship regarding a home which the spouses have on the basis of a service or employment relationship existing between one of them and a third party if the third party consents or this is necessary in order to avert a severe hardship.
(5) If no tenancy relationship exists with regard to the matrimonial home, both the spouse who has a claim to its transfer and the person entitled to the tenancy may demand the establishment of a tenancy relationship at conditions that are customary locally. On proviso of section 575 (1), or if the establishment of an indefinite tenancy relationship is inequitable on consideration of the justified interests of the landlord, the landlord may demand a suitable time-limit to be set on the tenancy relationship. If no agreement is reached with regard to the amount of the rent, the landlord may demand a suitable rent, in cases of doubt the rent which is customary locally.
(6) In cases falling under subsections (3) and (5), the right to enter a tenancy relationship or to its establishment ceases to exist one year after the final decision in the divorce case becomes final if it was not legally asserted prior to this date.
Section 1568b
Household objects
(1) Each spouse may demand that the other spouse on the occasion of the divorce transfers and assigns to him the jointly-owned household objects if he is more dependent on using them, taking account of the best interests of the children living in the household and of the circumstances of the spouses, than the other spouse or this is equitable for other reasons.
(2) Household objects which were acquired during the marriage for the joint household are deemed for distribution as joint property of the spouses unless the sole ownership of the spouse is established.
(3) The spouse who assigns his ownership pursuant to subsection (1) may demand a suitable compensation payment.
Subtitle 2
Maintenance of the divorced spouse
Chapter 1
Principle
Section 1569
Principle of personal responsibility
After divorce, each spouse is responsible for providing for his own maintenance. If he is not in a position to do this, he has a claim for maintenance against the other spouse only under the following provisions.
Chapter 2
Entitlement to maintenance
Section 1570
Maintenance to care for a child
(1) A divorced spouse may demand maintenance from the other, for the care for or upbringing of a child of the spouses, for at least three years after the birth. The duration of the claim to maintenance is extended as long as and to the extent that this is equitable. Here, the concerns of the child and the existing possibilities of childcare are to be taken into account.
(2) The duration of the maintenance claim is further extended if, taking into account the arrangement of childcare and gainful employment in the marriage and the duration of the marriage, this is equitable.
Section 1571
Maintenance by reason of old age
A divorced spouse may demand maintenance of the other to the extent that, at the date
1. of the divorce,
2. of the end of the care or upbringing of a child of the spouses or
3. of the lapse of the requirements for a claim to maintenance under sections 1572 and 1573
gainful employment may no longer be expected of him by reason of his age.
Section 1572
Maintenance for illness or infirmity
A divorced spouse may demand maintenance of the other, as long as and to the extent that, from the date
1. of the divorce,
2. of the end of the care or upbringing of a child of the spouses or
3. of the end of training, further training or retraining, or
4. of the lapse of the requirements for a claim to maintenance under section 1573
onwards no gainful employment may be expected, by reason of illness or other infirmities or weakness of his physical or mental capacity.
Section 1573
Maintenance for unemployment and topping-up maintenance
(1) To the extent that a divorced spouse has no maintenance claim under sections 1570 to 1572, he may nevertheless demand maintenance as long as and to the extent that he is not able to find appropriate gainful employment after the divorce.
(2) If the income from appropriate gainful employment is not sufficient for complete maintenance (section 1578), he may, to the extent that he does not already have a maintenance claim under sections 1570 to 1572, demand the differential amount between the income and full maintenance.
(3) Subsections (1) and (2) apply with the necessary modifications if maintenance was to be granted under sections 1570 to 1572 and 1575 but the requirements of this provision have ceased to apply.
(4) The divorced spouse may also demand maintenance if the income from appropriate gainful employment ceases because the spouse, despite his efforts, had not succeeded in securing the maintenance with lasting effect by means of the gainful employment after the divorce. If he had succeeded in securing part of the maintenance with lasting effect, he may demand the differential amount between the maintenance secured with lasting effect and the full maintenance.
(5) (repealed)
Section 1574
Appropriate gainful employment
(1) The divorced spouse is under a duty to enter gainful employment that is appropriate for him.
(2) Gainful employment is appropriate if it suits the training, the skills, a former employment, the age and the state of health of the divorced spouse, to the extent that such work would not be inequitable with regard to the standard of living in the marriage. In considering the standard of living in the marriage, particular account is to be taken of the duration of the marriage and the duration of the care for or upbringing of a child of the spouses.
(3) To the extent that it is necessary in order to take up appropriate gainful employment, the divorced spouse is under a duty to undertake training, further training or retraining, if successful completion of the training is to be expected.
Section 1575
Training, further training or retraining
(1) A divorced spouse who in expectation of the marriage or during the marriage did not undertake education at school or vocational training or who broke this off may demand maintenance of the other spouse if he takes up this or corresponding training as soon as possible in order to obtain appropriate gainful employment that secures maintenance with lasting effect and successful completion of the training is to be expected. The claim exists at maximum for the period of time in which such training is normally completed; here, delays in the training that result from the marriage are to be taken into account.
(2) Similar provisions apply if the divorced spouse undertakes further training or retraining in order to compensate for disadvantages that arose as a result of the marriage.
(3) If the divorced spouse, after the completion of the training, further training or retraining, demands maintenance under section 1573, then in determining the appropriate gainful employment for him (section 1574 (2)), the higher level of education attained is not taken into account.
Section 1576
Maintenance for reasons of equity
A divorced spouse may demand maintenance from the other to the extent that and as long as he, for other serious reasons, cannot be expected to be in gainful employment and the refusal of maintenance, taking into account the concerns of both spouses, would be grossly inequitable. The mere fact that serious reasons led to the breakdown of the marriage does not mean that they may be taken into account.
Section 1577
Indigence
(1) The divorced spouse may not demand the maintenance under sections 1570 to 1573, 1575 and 1576 as long as and to the extent that he can maintain himself from his income and his property.
(2) Income is not to be taken into account to the extent that the person obliged is not paying the full maintenance (sections 1578 and 1578b). Income that exceeds the full maintenance is to be taken into account to the extent that this is equitable, with regard to the financial circumstances of both spouses.
(3) The person entitled need not realise the basic assets to the extent that the realisation would be uneconomical or, taking into account the financial circumstances of both spouses, inequitable.
(4) If at the date of the divorce it was to be expected that the maintenance of the person entitled would be secured with lasting effect from his assets, but the assets subsequently no longer exist, there is no claim to maintenance. This does not apply if at the time when the assets cease to exist the spouse cannot be expected to undertake gainful employment by reason of the care for or upbringing of a child of the spouses.
Section 1578
Amount of maintenance
(1) The amount of maintenance is determined in accordance with the marital standard of living. The maintenance comprises all the necessities of life.
(2) Necessities of life also include the costs of appropriate insurance in the case of illness and need for long-term care and the costs of school education or vocational training, further training or retraining under sections 1574 and 1575.
(3) If the divorced spouse has a maintenance claim under sections 1570 to 1573 or section 1576, then necessities of life also include the costs of appropriate insurance for old age and for reduced earning capacity.
Section 1578a
Presumption of cover in the case of additional expenditure resulting from injury
For outlays resulting from injury to body or health, section 1610a applies.
Section 1578b
Reduction and time limitation of maintenance on grounds of inequity
(1) The maintenance claim of the divorced spouse is to be reduced to cover the reasonable necessities of life where an assessment of the maintenance claim oriented to the marital standard of living would be inequitable even if the concerns of a child of the spouses entrusted to the person entitled in order to be cared for or brought up were observed. Here, particular account is to be taken of how far, as a result of the marriage, disadvantages have occurred with regard to the possibility of taking care of one’s own maintenance or a reduction of the maintenance claim would be unfair, consideration being given to the duration of the marriage. Disadvantages within the meaning of sentence 2 may result above all from the duration of the care or upbringing of a child of the spouses, as well as from the organisation of household management and gainful employment during the marriage.
(2) The maintenance claim of the divorced spouse is to be limited in time where a maintenance claim without time limitation would be inequitable even if the concerns of a child of the spouses entrusted to the person entitled in order to be cared for or brought up were observed. Subsection (1) sentences 2 and 3 applies with the necessary modifications.
(3) The reduction and time limitation of the maintenance claim may be combined.
Section 1579
Restriction or refusal of maintenance for gross inequity
A maintenance claim is to be refused, reduced or restricted in time to the extent that it would be grossly inequitable for the person obliged to be claimed on, even if the concerns of a child of the spouses entrusted to the person entitled in order to be cared for or brought up were observed, because
1. the marriage was of short duration; here, account must be taken of the time in which the person entitled may demand maintenance for the care or upbringing of a child of the spouses under section 1570,
2. the person entitled lives in a stable long-term relationship,
3. the person entitled has committed a major criminal offence or a serious intentional minor offence against the person obliged or against a close relative of the person obliged,
4. the person entitled frivolously induced his own indigence,
5. the person entitled frivolously disregarded serious property interests of the person obliged,
6. the person entitled, before the parties lived apart, for a long period grossly violated his duty to contribute to the family maintenance,
7. the person entitled is clearly responsible for manifestly serious misconduct towards the person obliged, or
8. there is another reason that is just as serious as the reasons set out in nos. 1 to 7.
Section 1580
Duty of information
The divorced spouses have a duty to each other to provide, on request, information on their income and their assets. Section 1605 applies with the necessary modifications.
Chapter 3
Ability to pay and priority
Section 1581
Ability to pay
If the person obliged, with regard to his earnings and property situation, taking into account his other duties, is unable without endangering his own appropriate maintenance to pay maintenance to the person entitled, he need pay maintenance only to the extent that is equitable, taking into account the needs and the earnings and property situation of the divorced spouses. He need not realise the basic assets to the extent that the realisation would be uneconomical or, taking into account the financial circumstances of both spouses, inequitable.
Section 1582
Priority of the divorced spouse where more than one person is entitled to maintenance
If there is more than one person entitled to maintenance, the priority of the divorced spouse is governed by section 1609.
Section 1583
Influence of the matrimonial property regime
If the person obliged, in the case of a remarriage, lives in the matrimonial property regime of community of property with his new spouse, section 1604 is to apply with the necessary modifications.
Section 1584
Priority of more than one person liable for maintenance
The divorced spouse liable for maintenance is liable before the relatives of the person entitled. However, to the extent that the person obliged is not able to pay, the relatives are liable before the divorced spouse. Section 1607 (2) and (4) applies with the necessary modifications.
Chapter 4
Form of the maintenance claim
Section 1585
Nature of maintenance payment
(1) The day-to-day maintenance is to be rendered by making periodical payments. The periodical payments are to be paid monthly in advance. The person obliged owes the full monthly amount even if the maintenance claim expires in the course of the month as a result of remarriage or death of the person entitled.
(2) Instead of the periodical payments, the person entitled may demand a lump sum as capital, if there is a compelling reason and the person obliged is not inequitably burdened by this.
Section 1585a
Provision of security
(1) On request, the person obliged must provide security. The duty to provide security does not apply if there is no reason to assume that the payment of maintenance is endangered or if the person obliged would be inequitably burdened by the provision of security. The amount for which security is to be provided should not exceed the periodical payments for one year, except to the extent that, in the particular circumstances of the cases, a higher amount of security appears appropriate.
(2) The nature of the security payment is determined according to the circumstances; the restriction of section 232 does not apply.
Section 1585b
Maintenance for the past
(1) By reason of special need (section 1613 (2)), the person entitled may demand maintenance for the past.
(2) Apart from this, the person entitled may claim performance or damages for non-performance for the past only pursuant to section 1613 subsection (1).
(3) For a period lying more than one year before pendency, performance or damages for non-performance may be claimed only if it is to be assumed that the person obliged intentionally avoided performance.
Section 1585c
Agreements on maintenance
The spouses may make agreements on the obligation to maintain for the time after the divorce. An agreement that is entered into before the divorce becomes final and absolute must be notarially recorded. Section 127a also applies to an agreement that is recorded in matrimonial proceedings before the trial court.
Chapter 5
End of the maintenance claim
Section 1586
Remarriage, establishment of a civil partnership or death of the person entitled
(1) The claim to maintenance expires on the remarriage of, on the establishment of a civil partnership by or on the death of the person entitled.
(2) Claims for performance or damages for non-performance for the past continue in effect. The same applies to the claim for the monthly payment due at the time of the remarriage, the establishment of a civil partnership or the death.
Section 1586a
Revival of the maintenance claim
(1) Where a divorced spouse enters into a new marriage or civil partnership and where the marriage or civil partnership is then dissolved, he may demand maintenance under section 1570 from the former spouse if he has to care for or to bring up a child from the former marriage or civil partnership.
(2) The spouse in the marriage dissolved later is liable before the spouse of the marriage dissolved earlier.
Section 1586b
Obligation not extinguished on death of the person obliged
(1) On the death of the person obliged, the obligation to maintain passes to the heir as a liability of the estate. The restrictions under section 1581 do not apply. However, the heir is not liable beyond a sum that corresponds to the compulsory portion which would be due to the person entitled if the marriage had not been dissolved by divorce.
(2) In the calculation of the compulsory portion, special elements by reason of the matrimonial property regime under which the divorced spouses lived are not taken into account.
Subtitle 3
Equalisation of pension rights
Section 1587
Reference to the Pension Equalisation Act [Versorgungsausgleichsgesetz]
In accordance with the Pension Equalisation Act, an equalisation takes place between the divorced spouses of rights existing in Germany or elsewhere, in particular of the statutory pensions insurance, from other standard security systems such as civil servants pensions or pensions of a professional group, from company pensions or from private old-age and invalidity pensions.
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