Divorce by way of consensus in Germany

Content

1. What is a settlement agreement about, and all the issues that have to be tackled accordingly
2. Determining the terms: agreement to settle divorce or divorce agreement
3. Why opt for a consensual agreement
4. Is a Notary’s contribution necessary? Is it necessary to have the divorce agreement notarized?
5. Cost:
6. Trial expenses
7. Notary’s expenses in order to have the settlement agreement concluded
8. Could the settlement agreement be disputed by the involved parties?
9. When is the settlement agreement ready to be signed?
10. Issues to be settled by the agreement
11. Is divorce an option only via the Notary’s contribution?
12. Is there an option to have a divorce without any Notary at all?

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A couple may opt for the end of its mutual marital situation for a number of reasons (for instance, due to adultery, variance of views etc.).

Article 1566 of the German Civil Code (in German BGB) provides for the proper legal reasons for a marriage to be terminated, which read as follows:

• A marriage has evidently been seriously undermined if spouses have been separated for a year and both of them have applied necessary documents for a divorce, or the defendant has already agreed on the terms set by the claimant.
• A marriage has evidently failed if the spouses have been separated for three years

In other words, in order to have the divorce under way a relevant divorce application has to be submitted by a Lawyer to a competent Court of Law in Germany whose decisions are of course enforceable in any jurisdiction, the same way it happens with decisions published by the Greek Courts.

1. What is a settlement agreement about, and all the issues that have to be tackled accordingly

The idea behind such an agreement is that all issues related to the marriage have to be properly arranged between the two spouses determined to terminate their marriage.

The issues to be arranged read in detail as follows:

• Alimony with regards to the spouses following the termination of their marriage
• Alimony with regards to children, custody rights and in general, issues concerning accessibility to children
• Issues concerning community of property
• Balancing pensional claims
• Arranging household appliances
• Household apportionment

2. Determining the terms: agreement to settle divorce or divorce agreement

Agreement to settle divorce is the proper way to address this certain agreement in terms of legal jargon.

The other usually applied term is “divorce settlement” but it’s probably not so legally accurate

There is also the term “separation”, which is other than the divorce agreement. The former deals with the notion of spouses being separated, but not yet properly divorced. That is because probably they are still waiting for that separation year-period to pass by, time during which they could be deciding what their arrangement will be about and the aftermath of their divorce.

This separation agreement is about the period of time during which the spouses still remain married, and this is what differentiates it from the divorce agreement.

The separation agreement relates to all the issues that have to be arranged until actually the proper divorce is concluded. It usually serves as a blueprint in order to have the proper divorce agreement launched when the time comes, or in a way so as to avoid all those terms and conditions that could endanger the sustainability of the proper divorce agreement which is always – and has to be always – at the epicenter of everyone’s endeavours.

3. Why opt for a consensual agreement

The whole thing could as well be described as follows: by opting for and working tirelessly on a consensual agreement, the spouses get to avoid not just the money and the fuss related inexorably to a divorce situation, but most importantly they get to settle and arrange all issues, including children, housing and properties in the most civilized let alone accurate way one can think of.

The only thing left to be settled by a Court of Law is that of pensional arrrangements, an issue not so common in other jurisdictions, as for instance in the Greek one, but, nevertheless, and besides that specific and quite bureaucratic issue, it may as well be concluded in the most effective of ways, without no further emotional and/ or psychological meltdowns.

4. Is a Notary’s contribution necessary? Is it necessary to have the divorce agreement notarized?

Please find just below, a list of all these instances where a notary’s contribution and involvement is required by law, thus no further arrangement can there be in place without such notarized documentation:

Any agreement related to distribution of financial assets (article 1378 par. III Ρήτρα 2 BGB, part 7 LPartG)

Any arrangement with regards to real estate properties; in such occasions, the notary’s involvement is by all means necessary because a number of state authorities need to be officially contacted and have their records updated.

Issues related to alimony arrangements need also be settled via a notary

Succession rights are also to be arranged solely by a notary

5. Cost:

1. Trial expenses

Please always keep in mind that in terms of the German legal world and reality, a Court of law shall at all times be involved in a divorce process, even if it is just for the sake of estimating the overall expenses and cost of the actual decision, which is always a matter of the Court and not of someone else.

Having said that, please always take into consideration the fact that the expenses of a divorce are proportional to the income of the spouses, while there is a minimum price concerning the overall procedure which cannot be less than 3.000, 00€. In a nutshell, the overall cost of a divorce agreement may as well be estimated at practically three-times more from the salary of an average employee in Germany on a monthly basis. The process of overall estimation is regulated by Law On Lawyers’ fees – Section  13 of RVG

1. Notary’s expenses in order to have the settlement agreement concluded

In a few words, the cost of a Notary’s involvement in such a process is not arranged in advance, but it is again to be estimated in a proportional way to the spouses’ salaries. Therefore it would be quite frivolous on our behalf to display certain numbers here, given that on top of the notary’ s fee, there has to be an estimation of even more factors such as real estate properties to be taken into consideration

6. Could the settlement agreement be disputed by the involved parties?

To begin with, it needs to be made clear whether the arrangement agreement between the parties has been notarized or not. If not, the chances are you’ll get to have a lot of things arranged otherwise.

Still, even if the agreement is properly notarized there is the chance to have things altered if someone’s consent and signature has been acquired via deceitful ways. If that is the case, then there is the deadline of one year that has to be taken into consideration at all times in order for such a plea to be properly submitted before a Court of Law, and, in addition, there has to be solid evidence of the sort proving that the settlement agreement has been reached either in total or partially in an improper way.

7. When is the settlement agreement ready to be signed?

As soon as the spouses have agreed on the terms and conditions of their mutually reached and decided upon agreement, they can have it concluded even before the ruling of the Court with regards to the divorce. Please, at all times, do consider that there is always room for further settlement even after a year following the ruling of the Court

8. Issues to be settled by the agreement

Practically all issues, be them important or trivial, may be arranged mutually by the spouses, and that is ultimately the goal to be achieved via the preparation of a divorce agreement. A plethora of issues, such as:

Alimony , both of the spouse and of child-ren

Custody

Housing

Household apportionment

Distribution of real estate rights and properties,

just to  name a few are expected to be properly arranged via such an agreement, which at all times is considered best to have it properly notarized

9. Is divorce an option only via the Notary’s contribution?

Just to make things clear and avoid unnecessary misunderstandings, a divorce is to be reached and finally arranged only via a Court ruling.

To make a long story short, in terms of German legislation there is no such thing as a divorce concluded by a notary.

A notary’s input is more than necessary in terms of bringing together the divorce agreement and even the settlement agreement beforehand.

To  that respect, it is also of vital importance to keep always in mind that the notary is no lawyer, therefore his/ her job is to write down properly, accurately and thoroughly the decisions reached by both spouses after having them decided on all details of their separation.

It is also true that as soon as the divorce agreement is signed by both involved parties, the Court’s work shall be made much easier

10. Is there an option to have a divorce without any Notary at all?

Yes, if things need to be so bluntly portrayed, it is accurate to say that the whole of the divorce arrangement, and all its different aspects, may as well be concluded without any intervention from a notary’s point of view.

However, it is also accurate to note that in the majority of the cases where no notary participated in any way to the composition of a divorve agreement, one of the spouses decided to challenge the Court’s ruling practically and almost in the immediate aftermath of the divorce as such. Therefore, unless the two spouses feel comfortable enough with just the intervention of their lawyers whom they both trust, it does not sound like a good idea to avoid the intervention of a notary, just because there is also a fee to be estimated for his/ her services; if things get derailed, the cost of all appeal-like procedures will be almost the same, if not way more.

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