Always up-to-date: marriage contracts are put on the table that are very one-sided, mostly to the detriment of the wife. Such contracts are not only a risk for the wife, who is left “empty-handed” in the event of a divorce. They are also a risk to the husband because if the contract is too unfavorable it could be void as a whole and the husband would not have protected his property at all.
Both spouses or fiancés are therefore advised to seek advice from a lawyer specializing in family law before signing a marriage contract. It costs some money, but it can be a very good investment in the future. Most of the time, the fiancé is quick to convey that he should even assume the cost of the counseling, as this can avoid a lot of arguments later.
It is also advisable to have the marriage contract checked, even in a well-functioning marriage, especially if the framework conditions have changed during the marriage, e.g., no return to work, managerial work in the spouse’s business, change in financial circumstances due to extensive inheritance.
Disputed & Uncontested Divorce – Its Perspectives
The American Civil Code does not know the term “mutual divorce”, but it is still widely used in everyday life. In our experience, this means a divorce in which both spouses want to be divorced and there should be as few arguments as possible.
There is no dispute where either point of conflict has never arisen or where these were or should be discussed and contractually regulated during the separation or even at the beginning of the marriage. Then the couple only want a divorce and still need a divorce lawyer for “the formalities”. It does not work without a lawyer, but it is sufficient if only the applicant hires a lawyer. The other spouse, the so-called respondent, does not need a lawyer if he wants to consent to the divorce.
Together with the divorce, the pension equalization (pension entitlements) must be addressed, unless the marriage is not yet three years old. The court normally obtains information from the pension providers and makes a proposal for compensation. You can accept the proposal or change it with a marriage contract or legal assistance. If there is no dispute about the pension equalization, many divorced couples continue to speak of an amicable divorce.
Some still speak of an amicable divorce if the divorce was wanted by both of them, but other points of regulation had to be laboriously clarified out of court or in court, such as maintenance, the division of property or the residence of the children.
One speaks of the War of the Roses when the objective regulation of the consequences of the divorce is no longer in the foreground (e.g., the amount of maintenance), but the dispute is waged across the board because one wants to “take revenge” on the other spouse. You no longer argue about the matter, but for the sake of arguing, because emotions cloud the sober view of the progress of the marriage. Wars of the Roses are almost always regretted in retrospect, but afterwards you are always smarter.
What does the reality look like in our law firm, i.e., the relationship between uncontested and disputed divorces? Outsiders are likely to guess that there are many conflictual and few consensual divorces. In fact, half of our divorces are amicable, then there are divorces that need to be settled and maybe five to ten percent are “real” Wars of the Roses.
No single decision on vaccination
If parents with joint custody do not agree on vaccination, the decision cannot simply be made by the parent with whom the child stays more often. Instead, the parents either have to find consensus or one parent has to go to family court apply for sole decision-making authority for vaccinations.
In the decision of May 3, 2021, the Federal Court of Justice decided in favor of the parent who supported the vaccinations.
The guiding principles of the Federal Court of Justice are:
a) The vaccination of a child is a matter of considerable importance for the child even if it is a so-called standard or routine vaccination.
b) If the parents disagree about the implementation of such a vaccination, the decision-making authority can be transferred to the parent who supports the vaccination of the child in accordance with the recommendations of the Standing Vaccination Commission at the Robert Koch Institute, if the child does not pose any particular vaccination risks.
c) Obtaining an expert opinion to clarify and weigh up the general risks of infection and vaccination is not required for this.
Paradigm shift: The Federal Court of Justice allows a change model against the will of parents
The Federal Court of Justice in Karlsruhe wrote family law history with its decision on the interchangeable model from February 1, 2021 (file number XII ZB 601/15) . Courts can now set the so-called switching model even against the will of a parent.
So far, in the “dispute over the children”, the family courts have selected one parent who mainly looks after the children, while the other parent was allowed to bring the children to visit every two weekends (residence model). The courts did not want to order “one week mum, one week dad” (changing model). The Federal Court of Justice has now made it clear that there is no legal model for a certain form of care. Under certain conditions, the courts should order a changeover model, the advisory practice in the law firms will change.
According to the Federal Court of Justise, the new criteria for the changeover model are:
- Both parents must be suitable to bring up and the child must have a stable relationship with both parents based on a secure bond, which can be difficult with infants and toddlers.
- An essential aspect is the will expressed by the child, to which increasing weight is to be attached with increasing age.
- A certain proximity of the parents’ households and the accessibility of school and care facilities.
- A consensus between the parents about the care of the child in the alternation model is expressly not required, so it can also be ordered against the will of one parent.
- However, a corresponding ability of the parents to cooperate and communicate is required. The criteria for the ability to cooperate should be based on the exercise of common care; The practice there shows that not every dissent already leads to the lifting of the common concern. If there is a high parental burden of conflict, the changeover model will generally not be in the best interests of the child.
