Family Law in Germany

Family Law in Germany

Kristina Countess Pilati and Alma Fritz, partners at Pilati + Fritz Rechtsanwälte, a specialized German law firm focused on family law. With years of dedicated experience, Kristina and Alma have been passionately defending the rights and interests of their clients, especially in complex and emotionally charged family law matters. Their firm is renowned for providing strong legal assistance combined with tailored advice, ensuring that each client receives the best possible solution. In this interview, they share their professional backgrounds, the services they offer, and insights into the unique challenges and nuances of family law in Germany. 

Please introduce yourself to the readers of Lawyer Monthly. 

We are specialized lawyers for family law and partners of the law firm Pilati + Fritz Rechtsanwälte.  

For many years, we have passionately defended the rights and interests of our clients, particularly in complex and often emotionally stressful matters involving family law. 

With our extensive experience and dedicated team, we support our clients in overcoming family-related challenges and accompany them on their way to a changed future.  

There is hardly any other legal area in which critical issues clash with deep emotions as intensively as in family and inheritance law. In addition to providing our clients with strong legal assistance, we consider it to be our duty to offer tailored advice and to understand their individual needs. In every case, we endeavor to deliver the best possible solution. Divorce proceedings can take a long time and be very painful and costly. Therefore, an amicable settlement is advisable. Very often, such a settlement can be reached.  

What is your professional background and education? 

We both hold a law degree and have completed numerous training courses in family law. Through our many years of practice and specialization in this field of law, we have gained a strong foothold in Germany and abroad. Our law firm attaches great importance to ongoing further training and interdisciplinary cooperation. 

Kristina comes from a family of lawyers. Her father, Dr. Albert Paul, was a well-known and respected lawyer and notary in Frankfurt am Main. 

Kristina has worked as a notary for many years and also holds a degree in humanistic psychology. 

I (Alma) have been with the firm for 16 years, including 10 years as a lawyer, four years as a partner and now as a managing partner. I will continue the law firm and its tradition. Under the long-standing mentorship of Kristina, I was well-prepared to take over the law firm. In our law firm, I take care of family cases with a foreign element, in which child custody matters are in the foreground.  

From the very beginning, we have served major clients throughout Germany, working at a high level. We complement each other perfectly. Kristina has benefited from my experience, which I gained as a research assistant at the University of Frankfurt am Main at the chair of Prof. Dr. Guido Pfeifer. Thus, she has been able to leverage scientific, systematic work and current case law in the law firm. From the outset, we have complemented each other, operating on the same wavelength, and have secured an orderly succession. 

We have access to a large network and can, therefore, help our clients in all situations.  

What type of services do you provide?  

Our law firm provides comprehensive legal advice and representation in all areas of family law, including the following: 

  • Divorces and separations
  • Custody and alimony disputes
  • Marriage contracts and asset protection
  • International family law issues
  • Estate planning and inheritance law

Why did you decide to specialize in family law? 

Family law matters can be stressful for those involved and require particular sensitivity and expertise. We have chosen this area of law in order to assist our clients in difficult times and exceptional situations and to support them in resolving their family conflicts. The opportunity to help people and give them a perspective for the future motivates us in our daily work.  

How does child custody work in Germany? 

This is a very complex topic. In Germany—unlike in many other legal systems—distinction is made between custody and contact and access rights. Custody and, contact and access rights are independent of each other. Thus, a parent who does not have custody still has a right to contact with the child. 

Under normal circumstances, custody is jointly exercised by both parents. As far as the establishment of parental custody is concerned, distinction is made as to whether or not the parents are married to each other at the time of the child’s birth. 

If the parents are married at the time of birth, they are entitled to joint parental custody.  

If the parents are not married at the time of the child’s birth, they are entitled to joint parental custody 

  1. if they declare that they wish to assume joint custody and make declarations of custody,
  2. if they marry each other or
  3. if the family court grants them joint parental custody.

If joint parental custody is on hand, both parents have equal rights and make joint decisions for the benefit of their children. 

In the event of separation and divorce of the parents, joint parental custody generally remains in place. If the parents live separately, both parents jointly exercise parental custody, though the parent with whom the children usually reside has sole decision-making authority in matters of daily life. Everyday care includes all matters that arise in daily life, e.g. school life including participation in day trips, picking up the child from daycare or school, and so on. In matters of considerable importance for the children, such as determining their place of residence, school enrollment, enrollment and deregistration from kindergarten etc., the parents must make a joint decision. If they are unable to do so, the family court may, upon application, transfer the decision-making authority regarding the matter on which they are unable to agree to one of the parents. 

Parental custody may be withdrawn from one parent by the court and transferred to the other parent for sole exercise if there is no minimum level of cooperation and communication between the parents and the continuation of joint parental custody poses a risk to the child’s welfare.  

Can I move abroad with my child when the other parent has joint custody in Germany? 

If both parents have joint custody, moving abroad with a child requires the consent of the other parent. Without this consent, such a move could constitute child abduction. In such cases, a court decision to transfer the right to determine the place of residence may be necessary, as the transfer of residence is a matter of considerable importance for the child. If the parents disagree about the child moving abroad, it will often be necessary to transfer other areas of parental custody in addition to the right to determine the child’s place of residence, e.g. in school matters if the child is a student and needs to be enrolled in school abroad.  

International family law issues can include cross-border divorces, child abduction and custody disputes. What are the main challenges and complexities regarding international family law issues? 

It depends on the individual case. In international family law, the greatest challenges lie in the different legal regulations and legal systems of the countries involved. The recognition and enforcement of court rulings and the coordination between different national authorities are especially complex.  

International child abduction and child return proceedings, in particular, pose special challenges for all parties involved. As the situation can be unbearable for the parents concerned, it is all the more important to proceed strategically and carefully evaluate any steps to be taken. 

International family law is becoming increasingly relevant since families no longer all live in the same place or in the same country. 

Our law firm has extensive experience in cross-border legal matters and works closely with colleagues and experts around the globe.  

What is the divorce process in Germany and what happens to our finances on divorce? 

Divorce proceedings begin with the filing of the application for divorce with the court. A divorce may be pronounced after one year of separation. If the spouses did not conclude any prenuptial and postnuptial agreement, the statutory provisions apply.  

The statutory matrimonial property regime is the community of accrued gains. Under the community of accrued gains regime, each spouse retains ownership and management of his or her own assets and also benefits from them. There is no legal liability for the debts of the spouse. There are no joint assets. Instead, the spouse with the smaller gain receives an equalization payment from the other spouse. The respective gain is determined on the basis of a strict cut-off date principle, i.e. information must, on request, be provided about the assets on the date of the marriage and on the date of service of the application for divorce. This information must be substantiated with supporting documents. In addition, information may be requested about the assets at the time of separation. This information must also be substantiated with supporting documents. The spouse who has made the higher gain must pay the other spouse half of the difference between the respective gains as compensation. Inheritances or gifts made by one spouse during the marriage are added to the initial assets so that the other spouse does not participate in the increase in assets resulting from such gifts. On the other hand, any increase in value is subject to equalization. 

The spouses are subject to restrictions on the disposal of the assets as a whole and of household items. In order to counteract arbitrary reductions in assets and thus a reduction in the equalization claim, certain disadvantageous measures are either withdrawn purely by calculation, or the disadvantaged spouse may demand that the third party return what has been granted. 

If the spouses are unable to reach an out-of-court settlement, they can include subsequent proceedings in the divorce settlement (so-called combined application), e.g. post-marital alimony or equalization of gains.  

A combined application means that certain matters that are decided in connection with a divorce must actually be decided in conjunction with the divorce. The purpose of the divorce settlement is to clarify the consequences of a divorce even before it is pronounced.  

In a combined application, a matter is only decided on together with the divorce if the parties involved request this. 

Distinction must be made between this and the compulsory connection that exists between divorce and pension equalization. This means that as soon as an application for divorce is filed, the family court automatically conducts pension equalization proceedings, equalizing the entitlements acquired by the spouses during the marriage. 

From a financial point of view, a spouse may also be entitled to separation alimony for the period up to the divorce and post-marital alimony for the period after the divorce.   

What are prenuptial and postnuptial agreements in Germany, how do they work, and can they be treated as binding contracts in all jurisdictions? 

Marriage contracts can regulate property issues, alimony, and pension provisions and may be concluded both before and after the marriage. They need to be notarized in order to be legally effective. Marriage contracts may also govern the consequences of divorce, such as equalization of gains, alimony, pension equalization, allocation of the marital home or division of household items, etc. In this case, they are referred to as “agreements on the consequences of divorce”. 

The recognition of marriage contracts in other legal systems depends on the respective national laws.  

It is advisable to regularly review and adapt marriage contracts, as marital life can change over time.  

What does an amicable divorce mean and what is the role of the lawyer in achieving an amicable divorce? 

An amicable divorce means that both spouses want to get divorced and agree on the main consequences of the divorce. A lawyer files an application for divorce on behalf one of the spouses. The other spouse does not need their own lawyer, but can agree to the other spouse’s application for divorce.

The divorce becomes final once the one-month period for lodging an appeal has expired. If both spouses are represented by a lawyer, a waiver of appeal can be declared at the divorce hearing, so that the divorce decree becomes legally binding right after the judge has pronounced the divorce decree, i.e. immediately. Thus, the marriage is finally dissolved on the same day.  

How is an estate dealt with if there are assets inside and outside of Germany? 

In the case of an estate with assets in Germany and abroad, both national and international regulations must be observed. This may require cooperation with foreign authorities and lawyers. It is important to consider all relevant inheritance and tax regulations in order to ensure a settlement that is both lawful and efficient.  

Probate matters can be emotionally charged and challenging to resolve. What are the main issues clients face and how are these resolved? 

The main problems are often family conflicts that may also arise from patchwork families, especially if there are several ex-wives, uncertainties about the legal situation, and tax issues. These problems can be solved through clear communication, timely arrangements, i.e. arrangements made during the lifetime of the respective person, comprehensive legal advice, and mediation.  

In the case of divorced entrepreneurs with underage children, it is advisable to have a divorce will. 

Sometimes, overcoming the obstacle of entering a mediation process is a greater hurdle than actually reaching an agreement.  

What are the challenges and issues regarding German property disputes on the breakdown of a marriage or relationship, and how are these resolved? 

Challenges can include valuations of complex business structures in the context of gain equalization, which can be resolved through expert advice and thorough financial analysis, negotiations and, if necessary, court decisions.   

Family mediation is a popular Alternative Dispute Resolution (ADR) method to settle disputes between ex-spouses and separated parents. What impact has mediation and other ADR methods had on German divorce cases? 

Mediation can considerably shorten court proceedings and reduce emotional stress. It can promote an amicable agreement and avoid lengthy court proceedings and offers the parties a chance to talk in a protected environment. A mediator helps the parties to take responsibility, learn how to deal with the conflict, and come to a mutual agreement. 

Subject to the parties’ agreement, mediation can take place before or during court proceedings. In family law proceedings, mediation is often conducted in court by judges who do not have jurisdiction in the case itself. Out-of-court mediation can even take place while the court proceedings continue.  

Have there been any recent significant changes in German family law? 

Yes. In recent years, there have been some significant changes in German family law, particularly with regard to custody, strengthened rights of unmarried fathers and same-sex marriage, especially since the introduction of “marriage for all” in October 2017. 

In January 2024, the Federal Ministry of Justice presented key points for a reform of parentage and filiation law. Besides the conventional marriage and family model consisting of father, mother, and children, new forms of cohabitation have emerged and might need to be taken into consideration.  

What skills and qualities do you need to become a good family lawyer? 

A good family law lawyer needs excellent legal knowledge, empathy, communication skills, and negotiation skills. Moreover, passion, trust, integrity, confidentiality, and a sense of responsibility are essential. 

 

Pilati + Fritz Rechtsanwälte 

Friedensstr. 11 . 60311 Frankfurt am Main  

Tel: +49 69 2695853-0  |  Fax: +49 69 2695853-65   |  Email: fritz@pilati-fritz.de 

www.pilati-fritz.de 

 

Published by: www.lawyer-monthly.com – June 4th, 2024

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