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Family Law

„Happy families are all alike, every unhappy family is unhappy in its own way“
Leo Tolstoy, Anna Karenina

Participants in family disputes often find themselves in a very emotionally charged and financially stressful position and view themselves as being confronted with an unclear and complex legal situation which is subject to frequent change. For this reason, it is a good idea to consult a specialist solicitor for family law who is familiar with the particularities of family law through his education and professional experience and who is continually informed of all of the latest legal developments in this field.
With bi-national families, the legal situation is even less clear, since several legal systems compete with each other, whose application can lead to radically different results.

A particular level of experience and knowledge is therefore required in this area, so that the opportunities offered by the applicability of several legal systems can be used, and the risks are not overlooked.

Divorce

In German divorce law the so-called ‘principle of broken marriage’ applies. The family judge has to be convinced that the marriage has failed. This is the case if the husband and wife are no longer living together and it cannot be expected for them to cohabit ever again.

Conditions of differing severity are applied for proof that the marriage has failed depending on how long the spouses have lived apart and whether both parties agree to a divorce or only one has filed the petition for the divorce.

The family judge does not attempt to find out which of the spouses made the bigger contribution to the failure of the marriage during the divorce proceedings.

If you have been living separately from your spouse for approaching one year, you are able to file for divorce through a solicitor.

In certain cases in the event of divorce by common consent, the family judge will also ask you to reach an agreement with your spouse about the post marital maintenance, the marital home and furniture, and in the existence of shared children, about the parental custody arrangements, personal contact and child maintenance.

If your spouse is not prepared to do this and does not agree to the divorce then the circumstances which resulted in the failure of the marriage must be presented in detail (e.g. a sustained lapse in contact, a sustained period with a new lover or partner).

In the event of a separation having lasted for more than three years, the family judge will assume that the marriage is irrevocably broken and will confirm the divorce.

With cases of domestic violence, in so-called ‘hardship-case divorces’ the year of separation which otherwise serves as a condition for the divorce can be ignored, and the marriage can be dissolved immediately if it is to be reasoned that the victim no longer wishes to adhere with the marriage.

Only the spouse who is filing the petition for the divorce has to be legally represented. If they do not wish to challenge the petition for divorce or to make legal representations of their own, the other spouse does not need to be represented by a solicitor during the divorce proceedings. They should receive advice from a solicitor about their legal rights, however.

Matrimonial Property Rights

Spouses to whom German matrimonial property rights apply and who have not reached a legally effective alternative agreement live in the statutory matrimonial property regime of the community of surplus. In the context of the divorce, at the request of one of the spouses, the family court will carry out an equalization of the accrued gains in which the (positive) changes to the assets owned by both spouses during the marriage are compared, and the one whose assets increase the least will receive a settlement which totals half.

The result of an equalization of the accrued gains procedure can vary strongly depending on the assets which are to be considered and their value.

If evidence of the movement of assets is present during the separation phase, then a spouse is able to request the equalization of accrued gains or the securing of the claim to compensation prior to the divorce in the form of preliminary legal protection.

If both spouses were in paid employment and were in ownership of shared assets, e.g. buying a house together, or if one spouse developed a business or a profession with the cooperation of the other, then the equalization of the accrued gains is frequently unsuitable for the reconciliation of their shared assets. The apportionment of the assets then takes place separately from the divorce proceedings in the family court, occurring in a special claim action in a civil court. In the event of an unsuccessful claim, however, the legal costs of the opposing party must also be paid, which depend on the value in dispute and can be very high. For this reason, it is absolutely necessary for the prospects of success to be carefully examined.

It is frequently the case that the spouse who is entitled to compensation has liquidity problems prior to the equalization of the accrued gains / the apportionment of the assets. For this reason, I am able to check for you in advance as to whether you are entitled to counselling services for the provision of legal advice or legal aid for the legal assertion of your claim to compensation.

Pension Rights Adjustment

If the divorce is based on German law, the family court officially carries out the pension rights adjustment. It will carry this out without an appropriate application. In the event of the pension rights adjustment, the rights to future pension benefits accrued by each spouse during the marriage will be balanced out against each other. This should mean that any gaps in coverage suffered by a spouse who did not enter into paid employment, e.g. to care for children, which thus benefited the other spouse, will become closed.

Delays to the preparation of the pension rights adjustment can lead to the divorce proceedings becoming extremely long and drawn out. The family court obtains the information about the pension rights accrued during the marriage from the pension fund institutions.

The pension insurance funds frequently require supplementary information or supporting documentation regarding the participants – about vocational training for instance, the acquisition of which can be an arduous and time consuming task.
In order to relieve the strain on the subsequent divorce proceedings, the filing of a request for account clarification at the pension insurance fund is therefore recommended during the period of separation prior to the filing of the petition for divorce.
It may also be possible for the pension rights adjustment to be concluded in a notarised agreement. This must be concluded at least one year prior to the filing of the petition for divorce to be effective, however.

International Family Law

With international families, the legal relationships between the participants are not (only) based on German law, but (including or exclusively) on the law of another country which stipulates conditions which are either more stringent or lenient (for the divorce, or the parentage action for example), or other legal consequences (with the apportionment of assets and post marital maintenance).

It is the task of the solicitor to ascertain which legal system is applicable for them and to present the family judge with the basic circumstances. This is often omitted, however, which naturally results in the action being taken in German law, although an alternative legal system would also have been applicable whose provisions may have been more beneficial to the client.

In the event of divorces, the pension rights adjustment is normally carried out according to German law on an official basis and does not require an application from either of the spouses. With bi-national marriages, the completion of the pension rights adjustment can often be affected by considerable delays due to the time consuming acquisition of official documentation from foreign countries, which participants often find arduous and stressful, especially if the marriage was short. If the divorce is based on another law, it may be the case that the pension rights adjustment cannot, however, be completed without the appropriate application, which can be overlooked by the family courts if the solicitors do not raise the matter directly and present the circumstances according to which the applicability of the other legal system results.

There are a wide range of different possibilities in the area of international family law. I will be pleased to assist you in this area.

Child Abduction

If on the occasion of a separation or divorce, one spouse wishes to return to their country of origin, the question is raised as to whether they are able to take the matrimonial children with them or whether they must first wait for a custody order to be issued by the family court in the country of residence.
If one parent then decides to commit an act of fait accompli by taking the child without the agreement of the other parent, then this parent is entitled to take legal action for the return of the child on the basis of the Hague International Convention on Child Abduction or the European Convention on the Custody of Children.

These conventions are both based on the principle that the unlawful taking of a child to another country must always be reversed first and that the custody decision should be made in the previous country of residence.

The Federal Prosecutor’s Office which, according to the convention, administers the tasks of the central authorities in the event of abductions to Germany, will try and apply this principle, meaning the return to the other country, while the local youth welfare offices are more likely to express a preference for the child to remain in Germany, from the point of view of the interests of the child and for continuity reasons.

In the event of international child abduction, for the parent who is not in agreement with the relocation of the child, it is also important to complete the return proceedings quickly in order to prevent a consolidation of the change which has occurred. A lot depends on ensuring that the cooperation with the central authorities in the country of refuge is as smooth as possible.

Maintenance

On 1st January 2008, a comprehensive reform of the maintenance law came into effect, one of the primary purposes of which is the equal treatment of marital and non marital children in the area of custody support and the strengthening of the principle of post marital personal responsibility.

The question of whether the claim for the amendment of existing maintenance orders has any prospect of success primarily depends on whether it is to be reasoned or the entitled person is at risk of losing or suffering a cut in their maintenance. The reasoning in this case depends among other factors on the duration of the period of maintenance, meaning that the moment in time plays an important role and further period of waiting has a negative effect on the prospects for success.

Whether and to what extent maintenance is owing depends on the circumstances of the income of the participants, which is assessed as being higher or lower depending, for instance, on whether income-reducing debts owing by the party responsible for the maintenance are taken into account, or if the personal income of the person entitled to the maintenance remains discounted as being ‘beyond what the obligation requires’ because they are gainfully employed and care for young children at the same time.

This area does not only depend on the actual income of the participants, but also upon whether they could be expected to be able to earn a higher income (e.g. through changing their job, through taking a second job, or through working full time instead of part time basis); the answering of these questions strongly depends on the judicial appraisal of the previous and current living circumstances of the participants.

For this reason, the result of a maintenance dispute frequently varies depending on whether it is possible to successfully portray the income situation and personal living circumstances of the participants to the family court. It is therefore a good idea to seek and receive professional advice from a specialist solicitor in the early ages of a maintenance dispute.

It is frequently the case that a person entitled to the maintenance who lacks their own income and to whom no maintenance is being paid, will also lack the means to pay for legal advice and representation. In this case, counselling aid can be requested in court for the legal advice, and legal aid can also be subsequently requested for the legal representation during the maintenance proceedings, or an advance on the costs of litigation can be asserted against those responsible for paying the maintenance.

For the entitled person, engaging the services of the solicitor may be completely or partly free of cost. I will be pleased to check as to whether you are entitled to assistance with the cost of legal advice or legal aid, or whether claiming an advance on the costs of litigation would make sense in your case.

Parentage

According to the current laws, the question of parentage can be clarified without difficulty in a private report, as long as all participants are in agreement. If one of those affected refuses to partake, however, then the sole remaining possibility is an Action for Avoidance (§§ 1600 ff. BGB [German Civil Code]). It is possible to clarify parentage within the scope of such a procedure – if it should, however, turn out that the legal entity is not the biological father, then it is inevitable that the legal ties between the father and the child will be rendered null and void.

It has not, therefore, been possible to clarify parentage in a legal procedure without having to fear judicial consequences for the legal relationship between the father and the child. With the draft legislation, the procedure for all participants – father, mother and child – should be made easier. On 21st February 2008, the German Federal Parliament passed the ‘Law for the Clarification of Fatherhood independently of the Contestation Procedure’. This allows for the genetic determination of from whom a child originates to take place independently of the contestation of fatherhood.

The question of from whom a child originates is of considerable importance to a family. The legal father is entitled to know whether he is also the biological father. The child is entitled to know who its parents are, and it is possible that the mother will also want clarification. As ruled by the German Constitutional Court on 13th February 2007, this clarification is also protected under constitutional law.

Power of Attorney for Family Law Matters

Solicitor Wolfgang Sattler, Kurfürstenstrasse 23, 10785 Berlin,

is hereby conferred with power of attorney for the representation of my interests in my Family Law Case (§§ 81 ff., 609 ZPO [German Code of Civil Procedure). The power of attorney is primarily comprised of the authority

a) for the filing of applications in the divorce of a marriage, in divorce settlements and other collateral proceedings, in association and external to association,

b) to conclude agreements regarding divorce settlements,

c) for the filing of applications concerning the provision of information regarding the benefits, expectancy of and prospects for financial provision within the scope of a pension rights adjustment for me and for my spouse, and, if necessary, to submit a declaration of willingness.

The authorized attorney is authorized to declare a waiver of the facts of the case and reasons of the decision (§ 313a ZPO), to lodge and withdraw appeals, and to forego appeals, cross-appeals and the application according to § 629c ZPO, and to effectuate and accept service of process.

The authorized attorney is entitled to assign the power of attorney to third parties in part or in whole.

Costs

In maintenance related matters, it is frequently the case that prior to a successful assertion of the claim, the affected person has no or little financial means regarding the payment of the work carried out by their legal representative.

As in all other family law matters, it is frequently possible for the affected person to take advantage of legal aid and legal counselling aid.

I will be pleased to ascertain whether you are entitled to take advantage of such legal aid or legal counselling aid.

If you have legal costs insurance, in family law matters, this frequently covers the costs of the initial discussion with a solicitor.
If you do not have legal costs insurance and are not entitled to legal aid or legal counselling aid, for € 50 I will examine your claim, explain the prospects for its success and clarify the costs of the legal dispute. I will inform you appropriately as to if a legal obligation for the levying of higher fees exists in a given case.

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