1. Couple separation and divorce
2. Exception cases in which divorce will not be granted
3. Furniture and house objects BGB § 1361a
4. Couple residence after separation
5. Of the property and separation system BGB § 1363 and thereafter
6. Wealth administration
7. Equality and compensation to right of retirement
8. Custody of children
9. Food between spouses
10. End of duty of paying food
11. Determination of food between spouses according to the Düsseldorf table
12. Food for the couple’s children

1. Couple separation and divorce

The start of the divorce process, as in Brazil, should be preceded by a procedure of couple separation, according to the following conditions.

Legal divorce.
A couple can only separate through a legal sentence. The marriage will be dissolved through transit in rem judicatam of a legal sentence. Requirements for divorce are listed below:

1 - Marriage failure.
There may be a divorce for a couple if the marriage failed. A marriage is considered to be failed when the life together no longer exists and it is not expected to exist again.

2 - If the couple is not separated for more than one year, then divorce is only possible if the requirement by one of the spouses pleads extremely severe facts that prevent waiting for a year to have the divorce.

Presupposition of marriage failure.
A marriage will be presumed to have failed if the couple has been separated for more than one year and both required the divorce, or if the other spouse agrees with his/her divorce requirement.

or

a marriage will be presumed to have failed if the couple has been living separately for more than three years.

Couple separation
(1)
Couple separation is characterized when there is no longer communion of domestic interests and one of the spouses demonstrates not to have the intention of rebuilding and refuses the life in common with his/her spouse. There is no longer communion of domestic interests between the couple when they live in the same house, although separately.

(2)
Living together for a short time aiming at couple reconciliation does not annul nor interrupts the period of time established in paragraph 1566.

2. Exception cases in which divorce will not be granted

There cannot be a divorce in a marriage, although it has failed, if its maintenance is necessary due to exceptionally severe reasons involving a couple’s child (or children) who are minor

or

if the divorce for the spouse refusing it due to exceptional circumstances represents a severity that maintaining the marriage could solve or improve.

3.Furniture and house objects BGB § 1361a

In case of couple separation, each can demand household objects that belong to and were acquired by them. If they are necessary to maintain the new home, or to make the principle of equity valid, the party can require the goods belonging to the other spouse for his/her own use.

Objects belonging to both spouses shall be divided between both according to the principles of equity.

If there is no agreement between the spouses, the competent Court shall rule, in this case the county Familiengericht. The Court may set a value for using household objects.

4. Couple residence after separation

During the separation period, a spouse can demand from the other to leave the conjugal home or at least part of it for his/her own separate use.

If the couple residence is owned due to usufruct, or other legal forms, this situation shall be considered to determine who should stay in the residence.

If there are attitudes or threats by one spouse against the other that assail the other spouse’s health, physical integrity or freedom, a separate residence shall be granted. The hypothesis of separate residence should be excluded if the aforementioned attacks or threat of attacks no longer exist, unless the spouse who was a victim no longer wants to live together due to the severity of the committed act.

If a spouse totally or partly leaves the conjugal home, the other spouse can impose difficulties or prevent his/her right of using the residence. He/she can demand a payment for the right of use according to the principles of equity.

If, after the couple separation, one of them leaves the conjugal home and six months after moving out he/she has not manifested intention to return to the household, it will be assumed that he/she granted the right of separate use to the spouse that remained in the household.

5. Of the property and separation system BGB § 1363 and thereafter

The couple property system shall be the communion of acquests(Zugewinngemeinschaft) if it is not otherwise stipulated through marriage contract. This system means that the husband’s and the wife’s wealth shall not be a combined wealth of the couple. The goods acquired by inheritance after the marriage shall not be part of the couple’s wealth either. After the property system is no longer in effect, the goods acquired during the marriage shall be evaluated and each spouse shall be given the value corresponding to half of the total wealth. It does not mean that goods acquired during the marriage belong to both, but that after the marriage thevalue of such goods shall be divided.

Example 1 – only the husband acquired goods during the marriage: During the marriage the husband bought 2 houses. According to this system, such goods shall not be divided between the spouses, they will continue to belong to the husband. However, such goods shall be evaluated andhalf of their value shall be paid to the wife.

Example 2 – the husband and the wife acquired goods during the marriage: During the marriage the husband bought 2 houses and the wife bought 1 house. The goods shall not be divided between the spouses, they will continue to belong to the spouse that bought them. However, all goods shall be evaluated and the value corresponding to half of them shall belong to each of the spouses.

6. Wealth administration

Each spouse shall administer his/her own personal goods independently from the other. The following situations restrain the right of goods administration:

- A spouse needs the other’s agreement to compromise and dispose of his/her wealth. If the spouse obliged or compromised the other’s wealth without his/her consent, such commitment shall only be valid after the other spouse’s agreement.

- If the legal business in principle refers to a regular and correct administration, the competent court shall grant a legal consent if the spouse refuses to grant his/her consent without a reason, or cannot grant it due to illness or absence, endangering the business.

(continued, § 1366 a 1391)

7. Equality and compensation to right of retirement

Compensation of right to retirement
Between separated spouses there is the right of retirement as long as during the marriage there has been acquisition of right or probability of right to retirement or to reduction in work capacity, as established in § 1587 ABS2. They are excluded from this right when are not based neither on spouse’s work nor on his/her wealth


Time of matrimony is considered as the beginning of the month in which marriage was celebrated until the month in which the divorce process was started.

To have acquisition or probability of right to leveling of the right to retirement, the following paragraphs are exclusively valid; norms on property system shall not be applied.


The spouse with higher acquisition values or expectation of right to social security is obliged to leveling. Half of the value difference shall be destined to the spouse with right to leveling.

The following reasons should be considered to calculate the difference of values:



Acquired goods Acquired goods are the goods of a spouse that increase between initial wealth and final wealth.

Initial wealth Initial wealth is the wealth a spouse has at the time the property system starts after his/her debts are discounted; debts can be discounted up to the maximum wealth limit.

2- Wealth that a spouse acquires after the property system starts based on a future inheritance through donation or dowry, initial wealth will be calculated after debts are discounted, while circumstances cannot be calculated according to earnings.

Final wealth Final wealth is the wealth a spouse has at the end of conjugal property system, discounting possible debts he/she might have.

If a spouse, according to § 1378, has no right to leveling because the other spouse donated his/her wealth to a third party with the intention of damaging the spouse, the third party shall be obliged to return the amount resulting from such unjust enrichment. The third party can return the amount through payment of the irregularly acquired amount.

(2) The same is valid for all legal businesses performed with the aim of damaging the spouse with the third party’s knowledge.

(3) This right has a limitation of three years after the end of property system. If the property system ends due to a spouse’s death, limitation shall not be interrupted, so that the spouse can claim this right if the deceased spouse left a legacy or inheritance.

(4) If the process aimed at leveling is already in court or if there is a process of divorce or marriage annulment, then the spouse can demand a bail bond to fulfill the rights of paragraphs 1 and 2.

8. Custody of children

Parents’ separation when both live with their children

f the parents live together and both have paternal rights over their children and start living separately, each spouse can legally claim full or partial custody of the child(ren).

(2) Legal requirement shall be granted as long as

(3) The child’s custody shall not be granted if its denial is predicted in other paragraphs

9. Food between spouses

If after separation one of the spouses has no conditions of supporting himself/herself, he/she has the right to claim food from the other party, according to the following rules:

Food for children's care and education
The separated spouse has the right to claim food from the other if he/she has no conditions to have a job due to the need of providing care and education to a common child.


Food due to old age
The separated spouse has the right to claim food from the other if at the time: 1. of separation
2. of the end of a common child’s care or education, or
3. of not meeting the requirements to claim food according to § 1572 and 1573, his/her age to have a job is no longer possible.

Food due to illness or physical disability
The separated spouse cannot demand food based on §§ 1570 to 1573, 1575 and 1576 if, according to his/her wealth and earnings, he/she is able to provide his/her own livelihood.
1. of separation
2. of the end of a common child’s care or education, or
3. of the end of professional internship, enhancement of studies or professional recycling, or
4. of not meeting the requirements to claim food according to § 1573

it was no longer possible to claim food due to illness, physical or psychic disability, and having a job was also no longer possible.


One must confirm the need of receiving food
The separated spouse cannot demand food based on §§ 1570 to 1573, 1575 and 1576 if, according to his/her wealth and earnings, he/she is able to provide his/her own livelihood.


Food value
Food value is based on the couple’s standard of living. Estimate of right to food according to standard of living can be limited to a certain time, and afterward it can be estimated due to the need in special consideration to marriage duration, as well as to conduction of domestic economy and ability of professional earnings. A temporary and unlimited estimate according to § 1 would be unfair; this rule is not valid only when the spouse receiving the food takes care or took care alone or preponderantly of a common child. Time of child nurturing equals to marriage duration. Food includes the couple’s common costs of living.

Health insurance is included in food
Costs of health insurance and medical treatment are included as needs of cost of living, as well as the costs of school education or learning, professional recycling or enhancement, according to §§ 1574 and 1575.

Inclusion of retirement insurance and reduction in work ability
If the separated spouse has the right to food according to §§ 1570 to 1573 or 1756, an adequate retirement insurance and an insurance for reduction in work ability belong to the needs of cost of living.

Duty of providing information
Both spouses have the right of providing information to one another about their earnings and wealth. To do so, § 1605 should be employed.

10. End of duty of paying food

New marriage, new life in common or death of spouse receiving food
The right of feeding ends with a new marriage, new life in common with another partner or death of spouse receiving food.

Payment of delayed food
Right to payment of due installments or indemnity due to lack of payment of due installments in the past remain exigible debt. The same is valid for the payment of the month in which there was new marriage, new life in common or death of spouse receiving food.

Revival of right to food
If the separated spouse starts a new marriage and such new marriage is terminated, he/she can demand food from the previous spouse if he/she has a child from the previous marriage to raise and educate. If the child’s nurturing and education is over, he/she can demand food according to §§ 1571 to 1573 and 1575.

11. Determination of food between spouses according to the Düsseldorf table Food between spouses

Maintenance between the spouses
I. Estimate of monthly value of food by spouse if there are no children with right to food (§§ 1361, 1569, 1578, 1581 BGB):

1. when the spouse required to pay food has a professional occupation:

a) if the spouse entitled to receive food has no earnings: 3/7 of the difference between the value earned by the spouse due to his/her work, added by ½ of other earnings that the spouse might obtain

b) if the spouse entitled to right to food also has earnings: 3/7 of the difference between the value earned by both spouses due to their work, the total being limited according to general needs; other earnings they might have shall be divided in half between the spouses.

c) if the spouse entitled to right to food also has a profession, although he/she does not find a job according to § 1577 Abs 2 BGB;

2. if the spouse required to pay food does not have a professional activity (for example, retired); in cases 1 a, b or c, each 50%

II. Validity of anticipated right:
1. monthly estimate of food according to the law regulating matrimony if there are no children entitled to right to food:

III. Estimate of monthly value of food by spouse if there are no children with right to food

As in I and II 1, food due to common children shall be in principle discounted from earnings (value of tables with no discount of children’s food). However, if there is a disproportion between children’s food and spouse’s food, the spouse’s food shall be calculated according to the principles established by determination of the German Supreme Court of 01.22.2003 (FamRZ 2003, 363 ff.)

IV. Monthly needs of personal defrayal compared to separated spouse entitled to right to food and to divorced spouse entitled to right to food

VI. Monthly needs of personal defrayal (minimum for survival) to the spouse that lives in the same household with the spouse required to pay food:

12.Food for the couple’s children

	Net earnings of spouse required to pay food (Anm. 3, 4)	Age group in years (§ 1612 to Abs. 3 BGB)				In percentage	Bedarfskontrollbetrag (Anm. 6)
		0 - 5	6 - 11	12 - 17	ab 18
Values in Euros
1.	Até 1300	199	241	284	327	100	840
2.	1300 - 1500	213	258	304	350	107	900
3.	1500 - 1700	227	275	324	373	114	950
4.	1700 - 1900	241	292	344	396	121	1000
5.	1900 - 2100	255	309	364	419	128	1050
6.	2100 - 2300	269	326	384	442	135	1100
7.	2300 - 2500	283	343	404	465	142	1150
8.	2500 - 2800	299	362	426	491	150	1200
9.	2800 - 3200	319	386	455	524	160	1300
10.	3200 - 3600	339	410	483	556	170	1400
11.	3600 - 4000	359	434	512	589	180	1500
12.	4000 - 4400	379	458	540	622	190	1600
13.	4400 - 4800	398	482	568	654	200	1700
	Over 4800	Dependant on circumstances of each case

Notes:

The Table itself has no operation of law, but it represents a line of general placement. It shows a guideline in principles of food value in relation to a spouse and two children entitled to right to food.

For a higher or lower number of people entitled to right to food, it should be added or subtracted in lower or higher levels of groups. Consider note 6. To cover the minimal needs of cost of living for everyone (including spouse), a reduction to the lowest group of the table may eventually occur. If available earnings are also not enough, this results in calculation insufficiency according to abschnitt C.

Minimal needs for personal defrayal

- in cases of single children underage;

- cases of children at the age of majority before turning 21 years, who live from the parents’ income and partly from the parents’ income and are currently attending school enhancement, correspond to the case in which the spouse obliged to pay food does not have a professional occupation at 840 Euros monthly. The share relative to accessory costs of water, electricity, heating, etc. should also be considered for housing. As necessidades pessoais podem ser aumentadas para adequação, se essa quantia isoladamente for inevitavelmente ultrapassada.Personal needs can be increased for adequacy, if the amount alone is inevitably exceeded. As necessidades pessoais adequadas, em especial de outras crianças maiores de idade, correspondem, regra geral a um mínimo mensal de € 1,000,00. Adequate personal needs, especially of other children at the age of majority, generally correspond to a minimal monthly amount of € 1,000.00. Such amount includes a monthly rent and accessory costs of up to 440 Euros.

Control of the necessary amount required from the spouse obliged to pay food starting from group 2 is not identical to personal need. Such amount should consider a division of earnings between the spouse obliged to pay and the children entitled to receive. If such amount is exceed considering the food that should be paid to the other spouse (vgl. also BV and VI), then a group of the table below should be used, so that the control of the necessary amount is not exceeded.

For children at the age of majority who still live from the parents’ budget or that live in their household, food corresponding to the 4th age level of the table. The adequate need of food by a college student who does not live or partly lives in his/her parents’ household corresponds to 600 Euros monthly. Such estimate can also be applied to a child that has his/her own earnings.

The amount for a child who is attending a technical course, who lives from the parents’ budget, or who lives in their household, except for occasional unpredictable needs due to the technical course conditions, should be reduced in 85 Euros monthly.

The value of food (Notes 1 and 7) does not include the values for health insurance plans and hospital treatment.