Spousal Support after Divorce in Germany

By Kaesling, Katharina | Houston Journal of International Law, Summer 2019 | Go to article overview

Spousal Support after Divorce in Germany


Kaesling, Katharina, Houston Journal of International Law


Postmarital spousal support is granted in Germany if the codified conditions that vary according to the reason for the claimant's indigence are fulfilled. The amount awarded is determined with regard to the marital living conditions and can be reduced, limited in time and refused on grounds of inequity. Generally, spousal support is paid monthly and can be adjusted to changes in the relevant income and resources. The payment of lump sums instead is principally not ordered by court but is more frequently agreed upon by the spouses. Agreements on spousal support are possible, but subject to judicial review. The German spousal support system has not been without critics, who notably take issue with its complexity, legal uncertainty and the ongoing bond spousal support creates after divorce.

I. INTRODUCTION/OVERVIEW: SPOUSAL SUPPORT IN
       GERMANY

II.CODIFIED CONDITIONS FOR POSTMARITAL SPOUSAL
       SUPPORT

III. DETERMINATION OF THE AMOUNT OF SPOUSAL SUPPORT
       A.   Full maintenance according to the Marital
            Standard of Living
       B.   Extent of the claimant's need
       C.   Extent of the debtor's ability to pay
       D.   Methods for Calculation, Appellate Court
            Guidelines and Tables

IV. REDUCTION AND LIMITATION OF SPOUSAL SUPPORT
       CLAIMS
       A.   Reduction and Limitation in Time on Grounds of
            Inequity
       B.   Refusal, Restriction and Limitation in Time for
            Gross Inequity

V. MODALITIES OF SPOUSAL SUPPORT

VI. MODIFICATION AND TERMINATION OF THE SPOUSAL
       SUPPORT AWARD
       A.   Modification of Periodic Payments
            1.   Increase of the Debtor's Income since Divorce
            2.   Decrease of the Debtor's Income
            3.   Changes in the Claimant's relevant income and
                 resources
            4.   Termination of the Award
            5.   In Practice: Adjusting the Periodical Payments
                 Awarded
            6.   Modification of the Lump Sum Award
            7.   (Premarital) Agreements
                 a.   Ranking of consequences of divorce
                 b.   Invalidity of an Agreement for Violation of
                      Moral Principles
                 c.   Limits to the Reliance on Valid Agreements
            8.   Criticism and Reform Perspectives
                 a.   Complexity and Legal Uncertainty
                 b.   Boundaries of postmarital solidarity

I. INTRODUCTION/OVERVIEW: SPOUSAL SUPPORT IN GERMANY

German law foresees maintenance claims during marriage, separation time and after divorce. In principle, each spouse is responsible for his or her own maintenance after divorce. (1) However, if one of the ex-spouses is not in a position to provide for him- or herself with appropriate gainful employment, he or she has a spousal support claim against the other if the conditions of one of the six maintenance provisions are fulfilled. These provisions cover inter alia maintenance to care for a child, maintenance by reason of old age and maintenance for unemployment. (2) The amount is not determined with regard to a subsistence minimum, but with regard to the marital standard of living. (3)

There is only one ground for divorce: the irretrievable breakdown of the marriage. (4) The breakdown of the marriage is presumed if the spouses have been separated for a year and both spouses petition for divorce or the other spouse consents to the divorce. (5) The same presumption applies in cases where the spouses have been separated for three years. (6) Hardship clauses provide for the possibility to grant a divorce without the fulfilment of these conditions in exceptional circumstances. (7) This non-fault system was introduced with the First Marriage and Family Law Reform Act of 1976. (8)

In the original German Civil Code of 1896, divorce and spousal support after divorce were based on fault. (9) The innocent spouse had a spousal support claim against the guilty party. …

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