Rights of spouses after divorce under German law

Rights of Spouses After Divorce Under German Law

What is each party entitled to? From maintenance to custody and property

In Germany, the work of the courts does not end with the pronouncement of the divorce decree (Scheidung). Instead, an equally important phase begins: determining the rights and obligations of each spouse after the separation.
German law regulates these rights in detail in order to ensure fairness, especially where children are involved, there is an imbalance in the financial situation, or joint property exists.

In this article, we explain the rights of spouses after divorce in Germany under the German Civil Code (Bürgerliches Gesetzbuch – BGB), with a focus on maintenance, housing, custody, pension rights and residence status.

1. Maintenance (Unterhalt)

a) Child maintenance (Kindesunterhalt)

• Payable by the parent with whom the child does not primarily live, to the parent who has the main day-to-day care of the child.

• It is obligatory until the child reaches 18 years of age (and sometimes beyond, if the child is still in education or vocational training).

• The amount is determined according to the Düsseldorf Table (Düsseldorfer Tabelle), which takes into account the income of the parent who has to pay.

b) Spousal maintenance (nachehelicher Unterhalt)

Spousal maintenance is not automatic. It is only granted in certain situations, such as:

• if one spouse is unable to work due to illness or age

• if one spouse is caring for young children and therefore cannot reasonably be expected to work full-time

• if there is a significant difference in income and no realistic opportunity to compensate for this difference in the short term after the divorce

In most cases, spousal maintenance is limited in time. Lifelong maintenance is only awarded in exceptional circumstances.

2. The marital home (Wohnrecht)

• If the rented home is in both spouses’ names, one spouse can apply to remain in the property.

• If the property is owned (by one or both spouses), the parties may reach an agreement, or the family court will decide.

• Priority is usually given to the spouse who cares for the children or who does not have a realistic alternative place to live.

3. Division of assets (Vermögensaufteilung)

Unless the couple has agreed on a different marital property regime (such as separation of property), the default regime in Germany is:

Zugewinngemeinschaft (community of accrued gains)

This means that all assets acquired by either spouse during the marriage are subject to an equalisation of gains.

Property that belonged to one spouse before the marriage does not usually form part of this division.

To calculate the equalisation, the net wealth of each spouse is compared at the beginning of the marriage and at the date the divorce petition is filed. The spouse with the lower gain is entitled to financial compensation.

4. Equalisation of pension rights (Versorgungsausgleich)

• The equalisation of pension rights is, as a rule, a mandatory part of divorce proceedings.

• All pension entitlements acquired during the marriage are, in principle, divided equally between the spouses.

• This includes:

  • statutory pension insurance (gesetzliche Rentenversicherung)

  • occupational or private pension schemes (e.g. company pensions – Betriebsrenten)

The equalisation of pension rights is carried out automatically by the family court, even if neither party expressly applies for it.

5. Custody and contact with children (Sorgerecht und Umgangsrecht)

• As a rule, parental custody remains joint after the divorce (joint parental responsibility), unless the court decides otherwise.

• Neither parent may unilaterally take the child to live abroad permanently or change the child’s school without the consent of the other parent.

• The parent with whom the child does not primarily live has a right of contact (Umgangsrecht).
  – In practice, this usually means regular contact every other weekend, plus an alternating arrangement for public holidays and school holidays.

6. Legal status and residence (for binational marriages)

If one spouse is a foreign national, the following applies:

• If the residence permit is based solely on the marriage (e.g. through family reunification), the immigration authorities may review the residence status after the divorce.

• The right of residence often continues if:

  • the marriage in Germany lasted for more than 3 years

  • there are joint children living in Germany

  • the foreign spouse can demonstrate good integration (e.g. employment, language skills, social integration).

7. Debts and obligations

• Joint debts generally remain the responsibility of both spouses if they both signed the relevant contracts.

• Debts or loans taken out by only one spouse do not usually bind the other spouse, unless they also signed or assumed liability.

• After the divorce, the spouses can agree on how debts are to be repaid, or renegotiate with the banks.

Summary of rights after divorce:

Area

Legal position

Maintenance

Always child maintenance; spousal maintenance only under specific conditions.

Housing

One spouse may, by court order, be granted the right to remain in the home.

Assets

Equalisation of the increase in assets acquired during the marriage.

Pensions

Division of pension entitlements accrued during the marriage (pension equalisation).

Custody and contact

Generally joint custody and regular contact rights for the non-resident parent.

Residence

Where residence depends on marriage, it may continue under certain conditions.

Debts

Liability primarily for debts jointly signed; only then joint responsibility.

Key legal terms:

Term

Meaning

Zugewinngemeinschaft

Marital property regime involving equalisation of the increase in assets during the marriage.

Versorgungsausgleich

Equalisation of pension and retirement benefits accrued during the marriage.

Kindesunterhalt

Maintenance payable for a child.

Ehegattenunterhalt

Maintenance payable to the former spouse.

Sorgerecht

Parental custody and responsibility for the child’s person and property.

Umgangsrecht

Right of the non-resident parent to have regular personal contact with the child.

Wohnrecht

Right to continue living in a particular dwelling.

Aufenthaltsrecht

Right of residence and lawful stay in Germany.

Conclusion:

German law safeguards the rights of both spouses after divorce in an orderly and balanced way, whether in relation to finances, children or residence status. Nevertheless, it is always advisable to seek advice from a specialised lawyer – especially in binational marriages or where minor children are involved – to ensure that all rights are properly protected.

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The team of authors and editors of the website strives to provide accurate information based on in-depth research and consultation of various sources. Nonetheless, errors may occur or information may be incomplete or not finally clarified in legal terms. Therefore, the information in this article should be regarded as an initial point of reference only. For binding and up-to-date information you should always contact the competent authorities or qualified professionals.

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