In Germany, marriages only can be dissolved by court judgment. The minimum requirement to apply for a divorce is the completion of a one-year period of separation, generally referred to as the separation year.
During the separation year, spouses are not required to live in different homes; however, they must provide adequate proof that they have lived separately under one roof. This living arrangement can be problematic in some cases; for example, when one spouse wishes to divorce and the other does not, and when there is disagreement over the date the separation year began.
The spouse filing for divorce must be represented by counsel in court; however, if agreeable to a divorce the other spouse does not need to file a separate petition for divorce or to be represented by counsel. Nevertheless, in Germany one lawyer cannot represent both marriage partners in divorce proceedings. A lawyer can represent one party only due to possible conflicts of interest and because as a stakeholder a lawyer necessarily is partisan.
Even if both spouses mutually agree to divorce and also agree about various divorce-related issues (e.g., distribution of household goods, division of property, use of the marital home, spousal support, etc.), almost every divorce proceeding is characterized by conflicting interests when it comes to issues surrounding equalization of accrued assets (see equalization of accrued assets in section Family Law ABC).
It is important to keep in mind that divorce proceedings can take place with just one family lawyer but the applicant must have legal representation.
In Germany, it is possible for spouses to negotiate a separation agreement and/or divorce agreement through a notary (see section Family Law/Marriage Contracts).
The introduction of divorce proceedings has serious consequences. Although a marriage only can be dissolved legally through divorce, the end of what is referred to as the marriage period is considered to be when divorce papers are served to the other spouse. Only matrimonial assets, that is, assets acquired during the time between the marriage ceremony and the date of delivery of the divorce papers to the respondent, are divided according to equitable distribution law.
The annuity and pension entitlements established during the marriage will be compensated for through the equalization of accrued assets. Spousal inheritance is canceled if at the time of death the deceased spouse had filed for divorce or had agreed to a divorce and the conditions for divorce had been met. In other words, the surviving spouse is not entitled to spousal inheritance even if the divorce had not been finalized before the death.