Answer ... (a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
The amount of child support is based on the so-called ‘Düsseldorfer Tabelle’, which is observed by all family courts and depends on:
- the income of the person obliged to pay maintenance; and
- the age of the child.
In the case of underage children, half of the child benefits are deducted; and in the case of children of full age, the full child benefit is deducted.
(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
In terms of spousal support, German family law recognises two different forms. Separation support (Section 1361 of the Civil Code) is paid by the higher-earning spouse to the spouse with less or no income for the period from the official separation until the divorce becomes final.
To be eligible for spousal support, the applicant spouse must be indigent. It must therefore be impossible for the spouse to continue to maintain the approximate standard of living that characterised the intact marriage. The decisive factor here is the difference in income between the spouses living separately. Unlike in the case of post-marital maintenance, a spouse who was not employed during the marriage and at the time of separation cannot be referred to gainful employment without further ado.
After a divorce, there may be an obligation to pay post-marital maintenance. However, post-marital maintenance follows different principles from separation maintenance. In principle, German law assumes that after a divorce each spouse is obliged to provide for himself or herself. Post-marital maintenance is therefore limited to cases where one spouse is verifiably unable to support himself or herself. For that reason, it must be explained why it is not reasonable to take up gainful employment.
Relevant in particular is the case in which a parent cannot go to work due to the care of a minor child. This is usually assumed to be the case when the child is up to three years old. After that, payment of post-marital maintenance can be claimed only under special circumstances. Likewise, a claim to maintenance may exist if:
- work can no longer be performed or can be performed only partially due to illness;
- the person is registered as a jobseeker; or
- the income is not sufficient to fully support himself or herself.
Child support exists irrespective of whether the parents live together or separately, or are married or not. If the parents live separately, the parent with whom the child lives regularly contributes child support in the form of board and lodging. The other parent, on the other hand, is obliged to pay money.
Regardless of whether child or spousal support must be paid, the paying person must be able to pay the maintenance. In this case, a sum is deducted from the available funds that the person obliged to pay maintenance needs to live on himself or herself.
Any child maintenance must be paid before the separation maintenance and can therefore lead to an inability to pay separation maintenance.
(c) When do spousal and child maintenance expire?
Regularly recurring payments such as maintenance payments usually expire after three years (Sections 197 Abs 2 195 of the Civil Code). The statute of limitations begins to run at the end of the year in which the claim arose and the entitled person learned of the circumstances of the claim (Section 199 Abs 1 of the Civil Code). Maintenance claims that were already due at the time of titling expire after 30 years (Section 197 Abs 1 No 3 of the Civil Code).
The limitation period for maintenance claims of a child against his or her parents is suspended until the child reaches the age of 21 (Section 207 Abs 1 S 2 No 2a of the Civil Code). The limitation period does not begin to run until the end of the year in which the child reaches the age of 21. The statute of limitations for maintenance claims between spouses is suspended until the divorce comes into effect (Section 207 Abs 1 S 1 of the Civil Code).
(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
A current claim to child and separation spousal maintenance (if the divorce has not yet been applied for) expires with the death of the person liable to pay maintenance (Section 1615 Abs 1 of the Civil Code). However, this does not apply to:
- payments already due but not yet paid; or
- maintenance that must be paid retrospectively.
Those claims must be paid by the heirs of the paying party. Since child and separation maintenance must be paid monthly in advance, if not yet paid, the heirs are always liable for maintenance in the month of death (Section 1612 Abs 3 and Section 1631 Abs 4 of the Civil Code).
If the spouses lived separately at the time of death and the divorce was already filed for, the maintenance claim for separation maintenance does not expire and must be paid by the heirs.
The same applies to a current claim to post-marital spousal support. The amount of support is limited to the amount of the compulsory portion heritage to which the dependent spouse would have been entitled if the marriage had not ended. The compulsory portion is a mandatory portion of the inheritance that the spouse is entitled to by the law, normally ¼.
Even during a bankruptcy, maintenance must continue to be paid as far as possible. In this context, maintenance payments have priority over other payments.
(e) Which bodies are responsible for issuing child support orders in your jurisdiction?
A German child support order can be issued by either the youth welfare office or the court. In contrast to titles issued by the courts, a youth welfare certificate can be issued free of charge at any youth welfare office. However, for such an extrajudicial maintenance order, the obligated party must agree to the payment by signature. Therefore, if the claim or the amount is contested, the beneficiary must seek a court order.
(f) Does the child support regime vary depending on whether the parents’ relationship was formalised (eg, marriage/civil partnership/co-habitation)?
The obligation to pay child support exists irrespective of the type of relationship that the parents are in.
(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
When it comes to child maintenance, German family law distinguishes between adult and minor children.
Due to their special neediness, minor children are always entitled to child support.
Child support for minor children must be claimed by the parent with whom the child lives. Irrespective of whether the parents are married, live in a civil partnership or neither, the parent in whose care the child lives may claim child maintenance on behalf of the child, as long as the parents share custody (Section 1629 Abs 2 S 2 of the Civil Code).
However, during the year-long separation period or during ongoing divorce proceedings, the parent who cares for the minor cannot assert maintenance claims as the child’s representative, but only in his or her own name (Section 1629 Abs 3 of the Civil Code).
A distinction must be made for children of full age. Children of full age are also entitled to maintenance if they:
- are still in general school education;
- are not older than 21 years;
- live with one of the parents; and
- are not yet married.
If one of the conditions does not apply – for example, because the child is over 21 or is no longer attending school – adults can only claim child support as long as they are in their first vocational training. Child support for children over 18 can no longer be claimed by a parent. Children who have reached the age of majority must therefore seek their own legal counsel if necessary in order to avoid conflicts of interest.
(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
As with all legal matters with an international connection, in the event of a dispute over child maintenance, it is first necessary to look at who has international jurisdiction and which law is applicable to the maintenance dispute. Depending on the applicable law, a dispute may have different outcomes.
The international jurisdiction for courts of EU member states (except Denmark) is determined by EU Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. The applicable law follows the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.
The different outcomes that disputes can have, depending on the applicable law, are particularly interesting in matters involving the amount of child maintenance to be paid where one of the parties lives abroad and the subsequent modification of foreign maintenance agreements. While under the Hague Protocol the applicable law for separation and post-marital maintenance can be chosen, this does not apply to child maintenance.
(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?
If a parent does not pay child support, he or she can be sued in court. Since the decision on the claim and/ or the amount of the claim can take a while, depending on the extent of the case, an interim application can be made.
Once the court has issued a maintenance order which has been received by the defendant, it can be enforced immediately (Section 116 Abs 3 of the Act on Proceedings in Family Matters of Non-contentious Jurisdiction). This will mostly be done by wage garnishment, which requires a garnishment and transfer order. This must be applied for at the competent enforcement court, which is the local court at the place of residence of the parent liable to pay maintenance (Sections 802 and 828 of the Civil Code). Other methods of garnishment include garnishments of bank account or property.
In addition to the court, a maintenance title can also be issued by the notarisation of the claims by the youth welfare office or a notary.