SPOUSAL SUPPORT AFTER DIVORCE IN GERMANY.

• Author: Kaesling, Katharina

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.

1. 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. With the Marriage Act of 1938, amended in 1946, additional grounds for divorce were introduced. Spousal support after divorce varied in accordance to the underlying ground for divorce. (10) With the introduction of the irretrievable breakdown of marriage as sole ground for divorce, spousal support after divorce was detached from the ground for divorce.

   In Germany, a marriage can only be dissolved by judicial decision upon the petition of one or both spouses. (11) Since 1977, jurisdiction lies with the family law courts, which are special departments within local courts (Amtsgerichte). (12) The family law court is competent for matters of spousal support as a consequence of divorce. (13) Its jurisdiction on these subjects is exclusive. (14) It is possible for the court to simultaneously decide about the divorce as such and postmarital spousal support, provided the corresponding request occurs in a timely manner. (15) This also means that the pronunciation of divorce and the award of spousal maintenance can occur at different points in time. The request for spousal maintenance can be made at any time and will be fruitful if the claim's conditions are met at the time of the decision.

   Within the German system of consequences of divorce, compensation for family work is also provided by the adjustment of pension rights (Versorgungsausgleich). (16) Pension rights and expectancies earned during the marriage will be divided equally between the spouses. (17) This division constitutes the third pillar of the economic consequences of divorce in addition to the independent pillars of dissolution of the matrimonial property regime and spousal support after divorce.

2. CODIFIED CONDITIONS FOR POSTMARITAL SPOUSAL SUPPORT

   While each spouse only has one integrative claim for maintenance, the Civil Code foresees a number of sets of conditions under which maintenance is granted. Six provisions stipulate the prerequisites for maintenance under different circumstances: maintenance to care for a child, maintenance by reason of old age, maintenance for illness or infirmity, maintenance for professional training, maintenance in case of unemployment and topping-up maintenance, i.e. spousal support if the claimant is gainfully employed, but his income is not sufficient to cover the standard corresponding to the marital living conditions. (18) In addition, Civil Code Section 1576 foresees a claim for maintenance for reasons of equity. According to that provision, a divorced spouse may demand maintenance from the other to the extent that and as long as he or she, for other serious reasons, cannot be expected to be in gainful employment and the refusal of maintenance, taking into account the concerns of both spouses, would be grossly inequitable. (19) Situations that do not fall under one of the more specific provisions can thus lead to a spousal support claim under that catchall clause. Every maintenance claim presupposes the lack of means to maintain him- or herself on the part of the claimant and the ability to pay on the part of the debtor. (20)

   Maintenance law mirrors societal conditions. This is especially true for spousal support in cases of unemployment, topping off maintenance and childcare. Spousal support in case of unemployment and topping off maintenance mirrors the current labour market policy and conditions and is thus not necessarily related to marital life. (21) In heterosexual marriages, topping off maintenance can also mean that a gender pay gap is compensated on an individual rather than societal level. (22) The conditions under which spousal support to care for a child is granted also strongly reflect family policy in Germany. Spousal support for childcare was substantively overhauled in the course of the 2007 reform. (23)

   According to Civil Code Section 1570 para. 1 of that provision, a divorced spouse may demand spousal support for the care for or upbringing of a child of the spouses for at least three years after the birth. (24) The duration of the claim is extended as long as and to the extent that this is equitable under Civil Code Section 1570 para. 1 sentence 2. (25) Here, the concerns of the child and the existing possibilities of childcare are to be taken into account. Under Civil Code Section 1570 para. 2, the duration of the maintenance claim is further extended if this is equitable, taking into account the arrangement of childcare and gainful employment in the marriage and the duration of the marriage. (26) There are thus three phases of spousal support to care for a child: (27) the first phase covers the child's first three years of life, followed by a possible extension for reasons related to the child's well-being and thirdly a possible extension for reasons related to the arrangements between the spouses.

   For the first three years of a child's life, the claimant can choose to personally care for the child and live off spousal support. (28) There is no obligation to work, as long as the claimant is the child's primary carer. (29) Insofar, the prevailing attitude towards third-person-care in Germany is reflected. Four years ago, 63% of the German population aged 16 to 49 years thought that a child is best cared for by family members at home; (30) this number was even higher in the West of Germany with 72%. (31) 56% of the German population and 62% in the West took the view that a child of two years would probably suffer if both parents worked fulltime. (32) This family work is mostly taken over by women both during and after marriage; they are thus still far more frequently claimants of spousal support than men. (33)

   After the child's first three years, the claimant generally has an obligation to carry out appropriate gainful employment. (34) Spousal support to allow the other spouse to personally care for the child can still be granted for reasons related to the child's well-being or, secondarily, for reasons related to parental arrangements. (35) With the 2007 reform, the lawmakers wanted to abolish the schematic approach to spousal support for childcare developed by the jurisprudence. (36) Before, the duration of the spousal support claim hinged on the child's age (Altersphasenmodell). Up to the completion of the child's eighth year of life, there was no obligation to work for the claimant. (37) As of the child's eleventh birthday, the claimant was generally expected to work to the extent of 50%...