Loading...

Follow German civil procedure | How to win lawsuits in G.. on Feedspot

Continue with Google
Continue with Facebook
or

Valid
The Process and Main Stages of Civil Litigation in Germany Filing a Civil Complaint

In order to initiate a civil lawsuit (Zivilprozess) in Germany, the plaintiff (Kläger) files a complaint with the competent German court (see here). This complaint is called “Klage” or “Klageschrift”, which means “statement of claim”.

After due registration by the court and a very preliminary compliance check with regards to the formal requirements set out by the German Civil Procedure Rules, the complaint is then served to the defendant. In most cases, the court itself takes care of the service procedure, but only after the claimant has either paid the court fees (Gerichtskosten) or has been granted legal aid by the court, which requires the claimant to demonstrate reasonable chances of success.

Personal service of civil litigation documents is normally not required in Germany and – as long as there is a valid address of the defendant within Germany — the claimant does not have to bother with any matters of service at all (for details see here).

In addition to the Klageschrift (complaint) itself, the court will serve to the defendant a letter setting a deadline for the defendant to inform the court whether they wish to dispute the claim. This deadline is usually 2 weeks if the defendant is resident in Germany but can be significantly longer if the defendant resides outside Germany. The court documents will contain detailed explanatory notes on the rights and obligations of the defendant. If the defendant misses this deadline, the German court will issue a default judgment (Veräumnisurteil), which is explained here.

In the Klageschrift (civil complaint), the plaintiff or their lawyer first explain why this specific German court has jurisdiction (Zuständigkeit) and demonstrate that all other formal requirements are satisfied, for example that the plaintiff is duly represented by a German licensed lawyer which is required on the High Court level and up (Postulationsfähigkeit), that the case is not already pending elsewhere (anderweitige Rechtshängigkeit), and that the lawsuit is not frivolous (Rechtsschutzbedürfnis). This part of the complaint is called “Zulässigkeit der Klage” (admissibility of the complaint).

The second part of the German statement of claim, the so called “Begründetheit der Klage” (justification of the claim), deals with the actual legal merits of the claim. In this part of the civil complaint, the German plaintiff’s lawyer describes the nature of the injury and damages and lays out how the defendant caused the harm.

The actual “application for relief” (Klageantrag) is usually stated right at the beginning of the complaint (i.e. on page 1 or 2). Some old-fashioned German litigation lawyers, however, put the demand for relief at the end of the German civil complaint. In the Klageantrag, the plaintiff may seek a wide variety of remedies, inter alia the payment of a specific amount of money to compensate for the damages (Zahlungsanspruch), or a court order against the defendant to stop a specific conduct (Unterlassungsanspruch). A German civil court may order many other types of relief, for details see this post.

Preparation of a German Civil Case

As we have explained in other posts (here), there is neither any discovery procedure under German civil procedure rules, nor are there any depositions or written witness statements. There is also no jury and no cross-examination of witnesses. German civil cases are much more centered around the judge (or panel of judges). These judges do not appreciate showboat lawyers trying to create a spectacle (to impress their client). Instead, these German judges want to be presented the relevant facts. Calmly and without aggressively attacking witnesses or experts. Remember that nowadays approximately 50% of German high court judges are female. They are usually not a fan of too much lawyer testosterone in the courtroom.

Since there is no jury and since the professional German judges are already well aware of the facts of the case from the submitted briefs, there are usually also no closing arguments. Once the relevant witnesses are heard (questions are asked by the judge!), the judge gives the parties an opportunity to discuss the case, especially to consider a late stage settlement. If this fails, the oral hearing is usually ended rather abruptly and the court adjourns.

This German style of a rather “mellow approach to civil litigation” often creates considerable frustration for US clients and their US attorneys because they feel that their side is not being presented as it should be. And a reasonable dose of US style aggressiveness in a German courtroom can work wonders. We frequently use these “shock and awe” tactics for our international clients. However, overdoing this in a German courtroom can be counterproductive. German trial lawyers who represent US or UK clients in Germany must explain the options and openly discuss strategy.

All this leads to a very different preparation of the civil lawsuit compared to the USA or the United Kingdom. In general, the oral hearings themselves are much less dramatic and also much less important for the outcome of the lawsuit. The lawyer’s briefs (Schriftsätze) together with reports of expert witnesses (Sachverständige), who are selected, instructed and questioned by the court – not by the parties, are generally what decides the case.

Settling a German Lawsuit

To avoid the stress, delay and expense which come with a formal trial, German civil procedure rules encourage litigants to attempt to reach any amicable resolution of the legal dispute. Thus, it is not only permitted but highly recommended and expressly encouraged by German civil litigation judges to settle a lawsuit – at any stage. The German system of statutory legal fees (both court and lawyer fees) also incentivises settlements. To be blunt: German lawyers earn more fees if they can get their clients to settle. More on this in the post: How to Settle a Lawsuit in Germany.

Oral Hearing in German Civil Proceedings

As explained above, there is no jury. Thus, oral hearings in German civil lawsuits are much shorter. If there is no need to hear witnesses or experts, and if the parties are unwilling to discuss a settlement, the hearing can be over in 10 minutes. For more on oral hearings in a German civil procedure see here .

The taking of evidence in a German civil trial is explained in this post here. Further major differences between civil litigation in German and the USA are that (i) there are no verbatim records or transcripts of what is said in the German oral hearings (details here), much less are there any video cameras or live broadcast; and (ii) the court documents are not public record.

How are Judgments issued by German Civil Courts?

Once all evidence is presented, expert reports have been obtained and once there has been at least one oral hearing, the court decides whether there is the need for another oral hearing or whether the court is willing to allow the parties to submit one final statement within a specific deadline (Schriftsatzfrist).

Whenever the court is satisfied that all relevant aspects have been duly dealt with and both parties have had sufficient opportunity to state their arguments and to present their evidence, then the court informs the parties about the date on which the judgment will be handed down (Verkündungstermin). Again, since there is no jury, this is a rather undramatic. In the vast majority of cases, neither party shoes up for the rendition of the judgment (Urteilsverkündung), because that would be over in 2 minutes since the judge only reads the operative provisions (Urteilstenor), i.e. who has won the lawsuit. In practice, both parties’ lawyers have a paralegal call the court on the day of the Urteilsverkündung and ask the court clerk to fax or email an advance copy of the judgment. The official copy of the German judgment will then be sent by post within a few days. Usually, the judgment is served to the parties’ lawyers who will then evaluate the reasons given by the court. Based on this evaluation, they will then advise their clients on whether it makes sense to officially appeal the German judgment.

More information on litigation and legal fees in Germany is available in these posts: For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag Guide to German Civil Proceedings erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
What to do if you are served a German Default Judgment?

In German civil litigation cases, the court will immediately issue a default court order (Versäumnisurteil) against any party that does not appear for a court hearing unless that party (claimant or defendant) is properly excused. This is why every German litigation lawyer worth his or her salt has the court’s phone number on speed dial in case the lawyer gets stuck in a traffic jam on the way to court. Otherwise, if there is a no show without a credible excuse or if a party is more than 15 minutes late, the court will issue the Versäumnisurteil right there and then.

In the good old times, there was a gentlemen’s agreement between German litigation lawyers not to apply for a default judgment in such a situation in order not to get the opposing lawyer into trouble with their client. But those days are long gone and nowadays it’s the exact opposite: it would be considered gross malpractice by a litigation lawyer not to apply for a default judgment if the other party’s lawyer does not show up for the hearing.

Even before an oral hearing date is set, the German court may already issue a Versaumnisurteil against the defendant if the defendant does not properly file the official notice of defence (Verteidigungsanzeige) within the so called “Notfrist” (meaning “emergency deadline” or “absolute deadline”) set by the German court. “Notfrist” (absolute deadline) means that such a deadline cannot be extended. It must be kept no matter what.

A common mistake by defendants in Germany is that the defendant him- or herself tries to correspond with the court instead of appointing a licensed legal counsel which is mandatory from the German High Court (Landgericht) level up. Only at the District Court level (Amtsgericht) or in Labour Courts a party may represent themselves (which, of course, is usually still a bad idea even if permitted). The specific requirements and consequences of a German civil procedure default judgment are set out in sections 330 to 347 German Civil Procedure Code.

Never ignore a Default Judgment

In case you have been served a German court document titled “Versäumnisurteil“, you must react immediately, especially if you own any assets in Germany, because these assets can very quickly be seized based on the default judgment alone. What makes the German default judgment so dangerous is the fact that it becomes final and binding if the party on the receiving end does not enter a formal protest (Einspruch) against said default judgment within a strict court deadline. The period is usually only two weeks from the day you have been served with the judgment, see section 339 German Civil procedure Rules. In cross-border cases, the court may grant somewhat longer filing periods, usually one month. Again, the tricky part is that on the level of German High Courts (Landgericht) and above, such a protest (Einspruch) will only be accepted if filed by a properly licensed German lawyer. Letters or faxes from the USA, even if send by a US attorney at law, will simply be disregarded. Therefore, you must not wait until the deadline is almost expired because you need to hire a German lawyer in time for them to file the protest on your behalf!

Default Judgments can be enforced even in case of a Protest

What makes matters even worse: Even if the party who has received a default judgment against them does file a protest in time and the civil lawsuit is thus continued, the other party may still use the existing default judgment to enforce the claim on an interim basis (vorläufig vollstreckbares Urteil). This means that just because the defendant may have missed a court deadline or was more than 15 minutes late for a court hearing, the claimant is able to immediately seize property, a bank account or the salary of the defendant in Germany. If only as a preliminary measure, i.e. the claimant must eventually return the seized German assets in case the court does rule against the claimant in the final judgment. However, until then, the claimant is already in possession of the assets which is a huge strategic advantage.

Thus, you should avoid at all times to risk finding yourself at the receiving end of a German default judgment.

More information on litigation in Germany: For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.


  //

Der Beitrag Appeal against a German Default Judgment (Versäumnisurteil) erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
What is an “Unterlassungsklage”?

If you start a business in Germany, it is hard to avoid being taken to court by a competitor who files a German cease and desist order lawsuit against you in order to tell you what you are allowed to do and what you are not. Why so?

Germans have a lot of rules. An old saying is “Alles muss seine Ordnung haben” which means “everything must be in order”. But what good are rules if no one bothers to obey them?

Unlike the Italians and the Greek, who – at least on paper – also have a lot of laws and regulations, which – however – in everyday life no one seems to care about, Germans cannot bear if someone continuously does not play by the rules. There is the cliché of the German pedestrian waiting for the traffic light to turn green at 3 a.m. in the morning with no car in sight.

Getting sued in Germany is a matter of weeks!

That is why an extremely popular litigation tool under German law is the “Unterlassungsklage”, the German version of a cease and desist order application. This is used in all areas of German life, business and private. A neighbor repeatedly parks his car in your driveway? File a cease and desist order to prevent that from happening again. Someone sends you unwanted advertising emails? File a cease and desist order. A business competitor does not comply with German trade regulations on his web shop? File a cease … Well, you get the picture.

Sounds funny, but this can be a serious obstacle for non-German businesses starting up in Germany. We have had cases where a British or US business was confronted with 50+ cease and desist lawsuits by German competitors within the first month of trying to do business in Germany. For more on the German tradition of stress testing any newcomers see this post: Harsh Unfair Competition Rules in Germany

More information on litigation and legal fees in Germany is available in these posts: For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

 


  //

Der Beitrag The German National Pastime: Filing Cease and Desist Orders erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
Can German patients demand a complete copy of their medical file?

They certainly can. The German Civil Code contains an entire chapter on medical treatment and patient rights. Section 630g German Civil Code regulates that a patient has the right to demand to personally inspect the original patient file. This includes computer files as well as any handwritten notes that may exist. Nowadays, most physicians and certainly all hospitals keep patient files in electronic form. Thus, in practice, the doctors and medical institutions will offer to provide the patient with a copy of the medical records in such electronic form, i.e. as a CD, DVD or cloud based download option.

In some cases, especially when it comes to psychotherapy or mental disorder treatment, the neurologist oder psychotherapist may reason that it is against the patient’s best interest to grant him or her full knowledge of the file. However, this paternalistic view becomes more and more rare. Nowadays, German courts usually do rule in favour of the patient who wants to obtain full knowledge of his or her medical records, even if the patient may not be happy about the medical findings contained in such files.

How to obtain medical records to prepare a German tort case

We have explained in this post (link) how to make a personal injury claim in Germany. As far as compensation for pain and suffering (Schmerzensgeld) is concerned, such German personal injury lawsuits do not provide quite the same upside potential as in the United States due to the lack of a jury and due to the restrictive tradition of German law when it comes to non-monetary damages. Still, German law, in principle does compensate a patient for all costs, losses, expenses and also some non-monetary damages.

If a patient believes that their medical treatment in Germany was not state of the art and that they have suffered an injury, the first step will be to ask for a copy of the medical records. This enables the patient or a provate medical expert hired by the patient to assess the case.

Release form to authorize lawyers to inspect patient medical information

In such cases, the patient can either ask for a copy of the patient file themselves or instruct a law firm to request the physician/hospital records on the patient’s behalf. Our firm has prepared a bilingual (German / English) standard patient records release request form for our clients to use (download form as pdf):

Medical Records Release Consent Form (German)

In this letter, the client authorizes the lawyers to either inspect the patient file in person at the doctor’s office and/or to request a copy of the file either in paper or in electronic form. This consent form must then be presented to the physician or medical insitution. If the patient or his/her lawyer asks for a copy of the file, the physician / hospital is entitled to demand reimbursement for the costs to make such a copy of the file.

What if the patient has died?

In those tragic cases where a patient has died, the heirs and/or next of kin are usually authorized to inspect the patient files (section 630g para. 3 German Civil Code). However, things tend to get a bit more complicated in those circumstances because a physician may argue that the patient would not have wanted these heirs or relatives to know. In case of a potential tort claim, however, German courts usually rule that the medical records must be disclosed.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag Release of Medical Records in Germany erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
Get the best of both worlds: a professional German judge in a non-public civil proceeding

Parties to civil litigation often fear the public nature of a lawsuit, be it in the USA or in Germany. This is especially true for commercial and corporate cases as well as any litigation involving celebrities. The parties do not want their competitors and the public to learn about confidential business matters or — in case of celebrities — their private lives.

Therefore, many businesses and high profile individuals use arbitration clauses in their contracts to avoid ending up in a court room ful of reporters. However, arbitration is usually significantly more expensive compared to a “normal” German court case, because the arbitrators are high profile lawyers from big law firms who charge hourly rates north of EUR 500 easily. This is particularly trie in Germany where the statutory court fees are comparatively low (see here).

Furthermore, picking the right arbitrator(s) is difficult and time consuming. The parties need to agree on a competent lawyer who is available in the near future and who’s law office does not have a conflict of interest.

Mediation / Arbitration at German High Courts

In many cases, the ideal solution to this may be to opt for a German “Güterichterverfahren“, an open mediation / arbitration proceeding which takes place before a German high court judge (Güterichter) and to which the basic principles of the German civil procedure rules do apply. However, such a Güteverfahren is entirely confidential and the parties are free to define the scope of the dispute, i.e. they can include additional matters to achieve an overall solution. The German mediation / arbitration hearings in the Güterichterverfahren usually take place at the German court house but behind closed doors. There are official hearing minutes (Protokoll) but they are only available to the parties, not to the public.

What are the advantages of German high court arbitration?

German civil law judges actively encourage the parties to a legal dispute to consider such a court arbitration proceeding, even if a “normal” civil lawsuit has already been filed, see section 278 para. 5 German Civil Procedure Code. The advantages of this German high court arbitration are:

  • confidentiality, non public procedure
  • experienced professional German judges who are absolutely impartial hear the case; neither party must fear that a private arbitrator (or their law firm) has any hidden stakes in the matter
  • very reasonable costs since the German statutory court fee table does apply
  • in case of a settlement, the judge will issue an enforceable court order
  • if the parties do not reach a settlement, they have not lost anything because they can always go back to the standard civil litigation proceedings (streitiges Zivilverfahren) in which another judge will then hear the case

More information about this Güterichterverfahren (not to be confused with the Gütetermin, which is part of any German civil litigation) is available here and in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag Mediation before a German High Court Judge erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
Here’s why you can’t find any Process Servers in Germany

So you are a US, Canadian or British lawyer who needs to serve court papers to a party who is resident in Germany? Since you read this post, you have probably already realized that googling “Process Server Germany” does not get you anywhere. The simple explanation for why you are having such a hard time to find decent German process service providers on the internet: There aren’t any.

Germany has no tradition of instructing private process servers. No German lawyer would use them to deliver domestic legal documents to anyone who is resident in Germany. Because, under German civil procedure rules, they would simply see no need for it.

This post explains why the process server business sector never caught on in Germany and what German lawyers do in order to prove delivery of their legal papers.

Then how do German Lawyers serve Legal Documents?

Firstly, in German civil litigation, the German civil court usually serves the documents to the respective parties, witnesses and experts. This does not only refer to the court orders, but to all correspondence between the court and parties. While direct service from one party to the other is possible under german civil procedure rules, this is the exception to the rule. Since everyone who lives in Germany must be officially registered with the resident’s registration office (Einwohnermeldeamt), everyone — at least in theory — has an official registered private address and can be served with documents by simply sending those documents to said address.

Secondly, legal documents in Germany are simply sent by post. In most cases even by regular mail, not even registered mail (Einschreiben). In other words: Germans still have complete trust in their postal service.

Believe it or not, even in case of registered mail, the small delivery receipt issued by the German Postal Service is all the party sending the registered mail can show as evidence. To complement this delivery slip, the German paralegal or assistant who sent the registered mail, makes a note in the case file on what day which documents were sent. But all this only proves that the law firm has sent the documents. What the mail man has actually done with the documents is not officially recorded anywhere.

In the rare cases where German civil procedure rules demand formal service by way of personal delivery, these legal documents are delivered by a German bailiff (Gerichtsvollzieher).

How to serve Germans with Court Papers from the USA, Canada or the UK?

In common law jurisdictions, Plaintiffs must usually present to the court as evidence of service a more formal document than a simple delivery slip issued by a courier or the German postal service. For a US or British lawyer who needs to serve an official legal document in Germany, working with a German bailiff may, however, be a frustrating experience because German bailiffs are notoriously slow, hard to reach and do not always speak English. Furthermore, they will not be willing to issue an individual proof of service notice, much less in English. Instead, they will use their rather cryptic German service protocol form (Zustellungsprotokoll). This form will in many case not satisfy the US or British courts because it does not contain the necessary information what exactly the German bailiff has done in order to attempt personal service to the German defendant.

Thus, the options are to try to instruct the local German bailiff, hope that he/she does speak English and is willing to issue an actual letter to you as proof of personal service. The costs are usually around EUR 300 net, i.e. plus VAT plus disbursements like translations etc.

If instructing a German bailiff does not work, the alternative approach is to contact an English speaking German lawyer in the area where the defendant lives and explain to said lawyer what you need in order to satisfy the US, Canadian or British requirements for serving official documents. If you are lucky, the German law firm will agree to send a reliable paralegal or intern to the address where the defendant lives to effect a personal service by handover of the documents.

Don’t forget Translations, Apostilles etc

Depending on whether the recipient in Germany is known to understand English, the legal documents must also be served together with a certified translation into German. If such a legal requirement to also serve an official translation of the documents is disregarded, the recipient may be entitled to refuse service of the document. But this is for the US or British litigation lawyer to decide whether the domestic court will require evidence that an official translation has been added. The same is true for the question whether documents must be certified and/or legalized (e.g. The Hague Convention Apostille).

Does Graf Partners LLP serve Documents in Germany?

Well, if there is no other way. In some cases, our firm will indeed serve legal documents for our international clients or partner law firms abroad and provide them with official proof of service, but the costs for this are significant. We charge at least EUR 500 net plus disbursements. If an affidavit of service by a German process server is required, the fee is EUR 700 net plus disbursements.

More on serving court papers and other legal documents in Germany is explained in this post:  SERVICE OF COURT DOCUMENTS IN GERMANY

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag No Process Server Anywhere! How do Germans serve Legal Documents? erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
Avoid the #1 Litigation Blunder: Incomplete or incorrectly spelled Company Names of German Defendants

In corporate litigation, there can be no “close enough” approach when it comes to the designation of the Plaintiff or Defendant. A litigation lawyer who sues a German company must be dead-on with all factual information about the parties. The name of each company, corporation or partnership involved in the German civil procedure must be absolutely precise, complete and up to date.

Otherwise, under German civil procedure rules, you may lose the lawsuit. Simply because you have sued the wrong defendant. The German civil procedure buzzwords for this problem are “falscher Beklagter” and “fehlende Passivlegitimation”.

Even if the (incorrectly designated) defendant remains entirely passive throughout the German civil lawsuit, i.e. the Defendant does not object to anything and your client is thus awarded a German default judgment (Versäumnisurteil), the client’s joy about the German court judgment will most likely be short-lived, since chances are that the client will soon learn that the judgment is unenforceable.

Why? Because the German bailiff (Gerichtsvollzieher) and the German court competent for seizing assets (Vollstreckungsgericht) will refuse to take any actions of enforcement (Zwangsvollstreckung) based on that judgment as soon as they realize that he Defendant’s name is incorrect or unclear. And they will realize because the Defendant will now object and bluntly state “that’s not me on the German judgment”.

When filing a lawsuit against an German business, be absolutely certain to use the correct company name of defendant

It is, therefore, a rather costly and embarrassing mistake when a foreign, i.e. non-German, litigation lawyer who files a complaint against a German legal entity is a bit careless about the defendant’s legal name or/and business address.

Even if the Plaintiff’s lawyer is not being sloppy, mistakes can easily be made, because many companies only give a short version of their actual company name on their stationary and on their website.

If a lawyer does not verify the full company name with the German company register before filing the lawsuit, the damage is done. Naming the wrong party is particularly dangerous when the Defendant is part of a group structure (in German called “Konzern” or “Unternehmensgruppe”).

Big corporations like Siemens, BMW or Volkswagen, for example, have hundreds of subsidiaries and project companies. Sometimes, those subsidiaries have very similar names and the difference is only one letter, one figure or the added name of a town. So, “XYZ Project GmbH” is not necessarily identical with “XYZ Project GmbH, Munich”.

The ending tells you the legal nature of the German business

Also, the ending of the company name is extremely important because that annex to the company name (which is usually an abbreviation)tells you whether the German business is actually a corporation, a limited liability company, a partnership or some other legal entity. It is extremely easy to make a mistake here!

Don’t miss! One Letter can be a Game Changer

Let’s use my own law firm as an example. On our websites, blogs and brochures, our law firm uses the name “Graf Legal”. This is, however, only the unofficial trade name for our US-German law department. The actual and legally correct name of our law office, as filed with the German company register, is this:

Graf & Partner Partnerschaftsgesellschaft mbB

The above business is, however, an entirely different entity compared to:

Graf & Partner Partnerschaftsgesellschaft mbH

Did you even notice the difference between the two? The diffference is only in the last letter. With regard to the first entity, i.e. in “Partnerschaftsgesellschaft mbB”, the “mbB” stands for “mit beschränkter Berufshaftung”, i.e.  „limited professional liability“, which means that the entity is a German partnership of professionals (in this case lawyers) and damage claims based on malpractice against these lawyers are capped. For any other claims and debts, all law firm partners remain fully liable with their entire fortune.

In contrast, “Partnerschaftsgesellschaft mbH” is something entirely different, because “mbH” stands for “mit beschränkter Haftung” which means that this is not a partnership, but a company and the entire liability of the company is limited, regardless of what the claim against the company may be based on. Thus, one single letter (B or H) makes the difference whether you sue a German limited liability partnership of natural persons or a German company.

How to research the correct name of a German business

As shown above, you cannot rely on the defendant’s website or stationary. Instead, you must do a proper search on the German company register (Handelsregister) in order to find out the official legal name of the company you want to sue, i.e. the legal name under which it has been incorporated and is officially registered with the German company register. Also, you should use the Germany company’s official registration number in the petitions to the German court.

The first step would be a basic online name search, which is explained below. In larger cases, you should obtain a complete extract on the company from the German company register (Handelsregisterauszug). These German company register documents show you the company history with regard to directors, shareholders, office addresses etc. In addition, you can check the financial history of the company by inspecting their annual financial reports. This does not work for all German businesses, however, only for companies, corporations and certain partnerships.

We explain how to read a German company register extract in this post here.

Another Example

In order to practice an online search, let’s use the example of the German company which uses “airstage” as the trade name on their website. The contact informatiuon they give on their website looks like this:

Now, if you take the information on their website at face value, you will probably file a lawsuit against a German business by the name of “airstage”. But is that their actual legal name? You can research this for yourself by visiting the official German company register website Unternehmensregister.  Big surprise: The search for “airstage” in the official company register comes up empty:

If you then do some more research on the company, either by using their address or the company number, you will find that the official company register record of the defendant shows that the actual name of the company is “Effekt-Technik GmbH”. The term “airstage” does not appear in the official records at all.

This detail is extremely important because if you rely on the website and sue against “airstage”, all the German the court documents as well as the final court order will also name “airstage” as the Defendant. This will most certainly create procedural problems later on, either when it comes out during the civil procedure or when you wish to enforce the court order, because it is simply not the correct company name and no company by the name “airstage” does exist.

Now, if the name issue comes up during the ongoing civil procedure, the German Defendant will probably not be able get away with arguing that the lawsuit does not refer to them, because they use this name on their official website http://airstage.de/kontakt/ Still, even if it would cause merely a procedural hiccup by generating a query from the German court, this may costs a few weeks.

The problem is indeed greater if the court has actually already handed down a judgment which designates the defendant with an incorrect name and this judgment has already become binding. Then chances are, you have obtained an entirely useless judgment because it will not be enforceable.

In order to avoid all such confusion, the Plaintiff’s litigation lawyer, in the above example, should use the following company details, especially the company register number:

Effekt-Technik GmbH, a limited liability company established under the laws of Germany, registered with the German Company Register kept at District Court (Amtsgericht) Stuttgart under the company register no. HRB 225042. The official company address is: Nürtinger Str. 64, 72667 Schlaitdorf, Germany. The company is being represented by their company directors (Geschäftsführer) Mr Rainer Mugrauer and Mr  Günther Mugrauer.

If the petition to the German court specifies the company like this, there is no room for error whatsoever.

Long Story short

Before filing a complaint in a German civil lawsuit, make absolutely sure that you have researched the complete and accurate company name as well as their correct current address and the correct names of the current partners or company directors.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag How to sue (the right) German Company or Corporation erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
May a Witness in German Civil Litigation refuse to give Testimony?

Under German Rules of Civil Procedure, any natural person, including minors, can be named as a witness (Zeuge) by a party to a civil procedure. The civil court then decides on whether and to what extent these witnesses (as designated by the parties in their briefs to the court) need to be heard, i.e. whether — in the view of the court — the specific issue which the witness shall give testimony on, is:

(i) relevant for the court’s decision; and

(ii) still in dispute between Plaintiff and Defendant after the exchange of briefs.

If the answer to both requirements is yes, the respective witnesses will consequently be summoned (geladen) by the German civil court. In practice, each witness will be sent a letter by the civil court (Zeugenladung) which demands the witness to attend an oral hearing in order to be questioned as a relevant witness on one or several specific issue(s), the so called “topics for questioning” (Beweisthema), see s. 377 German Civil Procedure Code. Thus, the witness is informed a few weeks prior to the actual oral hearing date what the court will ask him to testify on. The witness summons only describes this topic in rather broad terms. Normally, the witness summons letter does not contain any specific questions (this is different when it comes to expert witnesses). A typical example of the content of such a German civil court summons letter to a witness of fact would be:

“In the civil lawsuit between A and B regarding a car accident on Z-street on the … around … o’clock you have been named as a witness. You shall give testimony about the details how the accident occurred.”

In some cases, the court may permit the witness to testify in writing, i.e. by answering the questions by sending in a letter. This is, however, the exception to the rule.

Duties of a Witness under German Civil Procedure Law

The standard procedure is that the witness must attend the court hearing in person. Every person summoned by a German civil court has the duty to appear in court, to testify truthfully (s. 390 et seqq. German Civil Procedure Rules) and to swear an oath if this is demanded by the court (which it very rarely is, as I have explained here).

This general obligation of a German witness to give testimony in a civil lawsuit exists, however, exclusively vis-a-vis the court itself. There are no pre-trial depositions in Germany. Instead, the witness is questioned only in court and primarily by the judge.

Whether and to what extent any “witness preparation” is permitted under German civil procedure rules is a difficult issue. Remember that there is no jury in Germany, neither in civil nor in criminal cases. Thus, how a witness “comes across” is far less important in a German court case. Also, the witness and the legal counsel who has named the same cannot really “practice” their Q&A session in advance, simply because the German judge will pose the questions, not the trial lawyer. Still, a professional German trial lawyer will attempt to get a clear picture of what the witness will say in court. If the witness is very close to the client the lawyer is representing, the lawyer is not prohibited to rehearse the statement and give the witness feed back. However, obviously, the lawyer must not influence the facts themselves. The witness must also be prepared how to react if the judge or the opponent’s legal counsel asks whether the other party has discussed the case with him or her. A worst case answer by the witness would be:

“I did not really see this with my own eyes, but my husband’s lawyer has told me to say that …”

Since most German lawyers are somewhat afraid of being accused of unduly influencing a witness, they go to the other extreme: They do not even speak to the witnesses for their own case. In German forensic practice, it is often not even attempted to verify at the pre-trial stage what exactly it is that the witness will actually say in court. Furthermore, it is even uncommon to obtain written statements from a witness, much less to submit such witness statements to the court. This sometimes leads to surprising witness statements in the German civil court oral hearing. From my own courtroom experience, about one third of the witnesses either do not know anything about the topic they are supposed to give testimony on, or they testify the opposite of what the party who has named that witness did expect.

Who can be a Witness?

As mentioned above, the German civil court decides by way of a “court order on obtaining evidence” (Beweisbeschluss) whether and to what extent a witness, who has been named by one of the parties, shall be summoned and heard. Under the “principle of party presentation” (Beibringungsgrundsatz), the court is not permitted to summon anyone who has not been “offered as a witness” (Beweisangebot) by a party to the proceedings. On the other hand, the court is not obligated to summon each and every person to be heard in court, just because a party writes that person on their witness list.

There is no minimum age requirement to be a witness in German civil proceedings. According to the definition by the German Federal Court of Justice (Bundesgerichtshof), the highest German court in civil matters:

every person, who is intellectually able to make observations, to keep these in mind, to answer questions regarding these observations and to reproduce them, has the ability to testify in court (BGH, NJW 1985, p. 1158).

If a party names a young child or a mentally sick or handicapped person, it is up to the court to assess whether this person can be heard as a witness at all and — if so — whether the testimony given by such person is credible (Prinzip der freien Beweiswürdigung).

Who may refuse to testify in German Civil Court?

In German criminal procedure, as in German civil procedure, there are certain situations in which a witness is permitted to refuse giving testimony. In Germany, as in the USA and the UK, there is no legal doctrine of “finding justice at whatever cost” (keine Wahrheitsfindung um jeden Preis). Instead, the law acknowledges that there are circumstances where someone cannot be reasonably expected to disclose his or her knowledge. German procedural rules grant the witness the right to refuse testimony in these — limited — scenarios. In German civil litigation, the relevant grounds to refuse to testify are laid down in:

Thus, German law protects a witness against self-incrimination, as well as against conflicts due to the witness’ close personal relationship to one of the litigants. The witness shall not be forced to harm him-/herself or a relative, spouse or fiancé. Even former spouses and civil partners are protected under German law.

The second group of individuals allowed to refuse testimony under German procedure rules are those who are bound (as well as protected) by professional confidentiality obligations, i.e. physicians (Ärzte), clinical psychologists (Psychologen), attorneys-at-law (Rechtsanwälte), tax advisors (Steuerberater), certified public accountants and autitors (Wirtschaftsprüfer), journalists, members of the clergy, German civil servants (Beamte), German judges (Richter) and others who are obliged to secrecy. The German wording is “zur Berufsverschwiegenheit gesetzlich verpflichtet”.

The details on whether the refusal has merit and exactly how far the right to refuse testimony reaches in a specific case can be complex, especially with regard to the second group of individuals. While a spouse or relative has a very broad right to refuse testimony and there is usually not much to discuss, matters are more complicated with regard to those witnesses to whom confidential facts were entrusted by virtue of their profession or public office. For example: has the witness learned the information in his/her capacity as a lawyer or clergy man? Has the client released the physician or lawyer from the confidentiality obligations? If so, is the professional or member of the clergy merely permitted or also obliged to testify? All these questions can initiate interlocutory proceedings to determine whether the witness’ refusal to give testimony is lawful or not (see s. 387 para. 1 German Civil Procedure Rules).

Inform the Court early on

Any witness who intends to refuse to give testimony in a German court of law should not spring this upon the judge at the last minute. Instead, the witness should respond to the summons immediately by submitting to the court the facts on which he or she is basing the refusal to testify. Depending on the circumstances, it may be necessary to substantiate these facts. For example, if the refusal is based on being a the fiancé of the defendant. In other cases, especially family relations like parent-child or sibling, the right to refuse is evident and does not need to be substantiated by further evidence.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag Right to refuse Testimony in German Civil Court erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
German Civil Court Judges rarely put a Witness under Oath

Section 154 German Penal Code (Strafgesetzbuch) is titled “Meineid”, which is the German word for perjury, i.e. lying under oath to certain German authorities, either in a German court of law (Gericht) or in another official proceeding.

However, in real life, prosecution for perjury is very rare in Germany. This is not because all Germans are perfectly honest and no one lies in German court rooms (trust me, there is plenty of lying), but because not many German judges demand a witness to swear an oath. Not even when the judge is rather sure that he or she was just lied to by the witness.

Why does German law (appear to) employ such a soft approach towards “lying witnesses” in civil procedure? This post describes the method of hearing witnesses in a German civil lawsuit and explains why many civil law court judges in Germany are hesitant to put a witness under oath.

Witness Evidence in German Civil Litigation

First, you must remember that there is no jury in a German court of law (more here). The case is decided by a professional judge only. The German approach is that a witness shall be questioned by the judge (instead of by the parties) and shall tell “the story as the witness remembers it”. The witness shall coherently describe what he or she recalls, i.e. in a freely worded statement which is uninterrupted by constant questions by a party’s legal counsel. “Coherently” (“im Zusammenhang”) is the important buzzword here, see section 396 para. 1 German Code of Civil Procedure. This German civil procedure statute explicitly prohibits a rapid fire cross-examination style questioning of a witness.

The method of hearing witnesses in German civil litigation is therefore the exact opposite of the rather aggressive “question by question” approach used in the United States. German civil procedure rules do not believe in pressuring or leading witnesses. Instead, the German judge asks the questions rather broadly and then lets the witness speak. A typical question by a German civil court judge would be:

“What, if anything, do you recall about the meeting between X and Y on that day?”

It is only at the end of the witness hearing, i.e. after the judge has asked all questions which he or she deemed relevant, that the party’s legal counsels are then allowed to pose follow up questions (s. 396 para. 2 and 3 German Code of Civil Procedure). If a legal counsel gets too aggressive with this, the judge may step in and tell the German lawyer that the court does not consider the question relevant or that the question has already been answered by the witness. Judges usually give the lawyers some leeway and also let them ask additional questions even if the relevance is not immediately obvious. This also applies to leading questions (in German called Suggestivfragen): although not allowed under German civil procedure rules, German lawyers often pose such leading questions and the judge usually lets it slip. However, the court has the last say on whether a question is admissibleor not (s. 397 para. 3 German CPR).

Why are German Witnesses not put under Oath?

It fits the picture of this generally restrained and unaggressive approach of hearing witnesses in German civil trials, that a German witness is also very rarely put under oath (vereidigt). It would be considered a sign of general mistrust, if each and every witness would be put under oath even before he or she has started to give their testimony. Thus, under German law, a witness is generally being questioned without having to swear an oath. Much less an oath on the bible. Yet, the black letter law of German civil procedure rules does set out the circumstances under which a witness shall be put under oath in a German civil court.

According to s. 391 German code of civil procedure:

… a witness is to be placed under oath if the court believes this is mandated in light of the significance of the testimony, or in order to procure a truthful statement, provided that the parties to the dispute do not waive having the witness placed under oath.

At first glance, this reads as if most witnesses in a German civil procedure will be put under oath, especially if the judge has doubts about the truthfulness of the witness. Strangely, the opposite is true. Hardly any witnesses are put under oath (vereidigt). Not even when the judge believes that the witness has just lied to the court. This is due to statistical evidence and psychological studies which show that once a witness has begun to lie in court, he or she will almost never turn around and admit that they have been untruthful. Instead, they will stick to their story, even if it is clear to everyone in the court room that the testimony cannot be true and even if the judge thus threatens to put the witness under oath (which can be done after the testimony), which would raise the criminal charge from a simple “false testimony” (uneidliche Falschaussage according to s. 153 German Penal Code) to a felony charge (Verbrechen) of “perjury / lying under oath” (Meineid, s. 154 German Penal Code), the minimum sentence for which is one year in prison.

Never say never

Now, even if the majority of German civil judges tend to be unwilling to demand a witness to swear an oath, not all judges are the same. And, sometimes, even an otherwise laid back German judge can get angry if the witness tries to play the court for a fool too obviously. Thus, a smart trial lawyer can get the judge to make an exception to the “no oath practice”. An often successful strategy for this is to ask the court to summon the same witness again at a later date to question that witness about other aspects of the case or about new facts which came to light through the (false) witness testimony. At the same time, the court is asked to inform the witness that he or she will then be put under oath. That way, the witness has a few weeks to consider the situation and think about the consequences of keeping up the false statement. In my experience, the chances of the witness starting to backpedal are much higher if you give them some time to reconsider.

If the witness still keeps on lying, this is, of course, not without consequences, even under German law. If proven, the false statement is punished under s. 153 German Penal Code as “undeidliche Falschaussage”. Furthermore, the party that loses the German civil lawsuit can sue the lying witness for damages based on tort (e.g. in the form of accessory to fraud). Depending on the circumstances, lying in court can also constitute other criminal offences under German law (e.g. libel, slander etc.).

Practical Court Room Advice

Whenever you think it possible that a witness in German civil case may lie in the oral hearing, you should diligently prepare a strategy for that scenario. Collect factual evidence for you own version of events to prove the witness wrong. Then, in the actual court hearing, let the witness tell his or her story without interrupting right away. Do not immediately show to the witness that you know he or she is lying. That only makes the witness wary and more careful. Instead, use what I like to call an “Inspector Columbo” approach, i.e. let the witness finish their version with as much detail as possible. Then raise certain issues which do not fit in his or her story. One by one and very calmly. Only at the very end of the witness questioning you might want to make it clear that you consider the witness an outright liar. Depending on the reaction of the witness, you may get the court to demand the witness swearing an oath after all.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag Perjury, what Perjury? German Witnesses and the Oath erschien zuerst auf GermanCivilProcedure.com.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 
Checklist for (uncontested or contested) Divorce Proceedings in Germany

The German statutes dealing with the divorce of a marriage and the substantive requirements for the same are s. 1564 to 1568 German Civil Code (Bürgerliches Gesetzbuch, BGB). The specific civil procedure rules applicable to divorce cases in Germany are contained within s. 133 FamFG (German Code on Family Matters) which also refers to certain sections of the German Code of Civil Procedure.

Different sets of procedural rules apply to the various aspects of a German divorce (e.g. rules for the divorce itself, for maintenance, property separation, pension redistribution, child custody etc.). This makes it somewhat tricky to identify the correct set of rules, even for German lawyers if they are not experts in family law matters. In case you think we make German divorce procedure rules sound overly complicated, here is a typical Family Procedure statute. Check it out for yourself:

Section 113  Application of Provisions from the Code of Civil Procedure

(1) In marital matters and in family dispute matters, sections 2 through 22, 23 through 37, 40 through 45, 46 sentences 1 and 2, sections 47, 48, and 76 through 96 shall not be applicable. The general provisions of the Code of Civil Procedure and the provisions of the Code of Civil Procedure concerning proceedings before the Regional Courts shall be applicable mutatis mutandis.

(2) In family dispute matters the provisions of the Code of Civil Procedure concerning proceedings on claims arising from a deed, proceedings on claims arising from a bill of exchange, and proceedings for payment orders, shall apply mutatis mutandis.

(3) In marital matters and family disputes, section 227 (3) of the Code of Civil Procedure shall not be applicable.

(4) In marital matters, the provisions of the Code of Civil Procedure in respect of: 1.  the consequences of ignoring or refusing to provide explanations of facts; 2.  the prerequisites for modification of the lawsuit; 3.  the determination of the form of procedure, an early first court hearing, preliminary proceedings conducted in writing, and the statement of defence; 4.  a conciliation hearing; 5.  the effect of admissions before a court; 6.  acknowledgment; 7.  the consequences of ignoring or refusing to provide explanations concerning the authenticity of documents; and 8.  waiver of placing the opponent, witnesses, or experts under oath shall not be applicable.

(5) Upon application of the Code of Civil Procedure, in place of the term: 1.  “procedure” or “legal dispute” the term “proceeding,” 2.  “complaint/action” the term “application,” 3.  “plaintiff” the term “applicant,” 4.  “defendant” the term “respondent,” 5.  “party” the term “participant”  shall be used.

As you can see, a German family lawyer must apply many different procedural rules, depending on what exact claim he or she is making. Rules of evidence may be different, as may terminology and the options to appeal a decision.

Why are German divorce procedure rules so complicated?

Up until the introduction of the FamFG in 2009, German divorce matters fell under the rules of the German Civil Procedure Code (Zivilprozessordnung, in short ZPO). While there was a special section in the German ZPO dealing with divorce, the underlying “spirit” of the German ZPO was considered to be too aggressive and confrontational for family court matters.

In order to change this and make divorces (and other family law matters more “civil”), the new set of rules introduced by the German FamFG strives to make a divorce and everything that comes with it (maintenance and support obligations, separation of family assets, child custody and child visitation issues) less of a legal battle between “parties to a civil lawsuit” but more of a constructive process of finding consensual solutions wherever possible.

This is also the reason for the different legal terminology in German divorce cases compared to normal civil litigation (participant instead of party, application instead of complaint etc.). So, if the spouses are still on reasonable speaking terms, a German divorce can be very quick and relatively stress free. This is especially true if both parties, or — to use the correct terminology — both participants to the divorce are willing to agree on the financial issues, as well as on child custody and visitation rights issues in a separate side agreement, called a Trennungs- und Scheidungsfolgenvereinbarung (Separation Agreement, Marital Settlement Agreement).

If the spouses are willing to take that route, then pretty much the only thing that remains for the German family court (Familiengericht) to do is to issue the divorce decree itself, i.e. the final court order on divorce. In German, this is called the Scheidungsbeschluss, s. 1564 German Civil Code  and , s. 142 para. 1 FamFG), or — in old terminology prior to the FamFG  — it was called Scheidungsurteil. Such an “amicable” or uncontested divorce in Germany will take about 4-8 months.

If, however, the spouses — for whatever reason — can’t agree on all divorce related aspects amicably, the German divorce proceedings will take significantly longer, because statute s. 142 FamFG regulates that the divorce decree shall not be issued until all divorce related family matters have been sorted out, either by the participants or by the court. Therefore, our German family law experts always stress the fact that — wherever possible — the spouses should not make a divorce any more aggressive and confrontational than it has to be.

Checklist: Necessary Steps of a German Divorce 1. Legal Grounds for Divorce under German Law:

In 1976, Germany abolished the fault-divorce principle (Verschuldensprinzip). Since then, German substantive law (s. 1565 para. 1 German Civil Code) applies a no-fault divorce system and only knows one single ground for divorce, the failure (i.e. breakdown) of the marriage. The German expression is “Scheitern der Ehe” (failure of marriage), also called “Zerrüttungsprinzip”.

According to the definition contained in s. 1565 para. 1 sentence 2 German Civil Code, the marriage has irretrievably broken down (failed) if the marital community of the spouses (eheliche Gemeinschaft) no longer exists and it cannot be reasonably expected that the spouses will restore it, i.e. that they will reconcile. It is up to the German Family Law judge (Familienrichter, usually just one judge) to assess the state of the marriage and to make a prediction as to the chances of any reconciliation. In practice, of course, a judge has no way of knowing how a husband and wife really feel. Thus, German law provides for and German courts do apply two rules in order to determine the fate of a marriage. The irretrievable breakdown of a German marriage shall be presumed (conclusive presumption, in German “unwiderlegliche Vermutung”), if:

There are thousands of German court rulings on the issue of when und under which conditions exactly a couple has been genuinely separated. A German couple can be “legally separated” while still living in the same house or even apartment (s. 1567 German Civil Code). The decisive factor is whether they “live together” or not. In practice this means, that they must not have meals together, one spouse should not do the other spouses laundry etc. Obviously, they must not share the same bedroom if they want to convince the German family court judge that they have split up for a full year already, in spite of having lived in the same property.

A highly debated legal issue is also whether a brief attempt to reconcile the marriage does set back the clock (usually, they do not). So, even if the two — a few months into being separated — try to live together again but after a few days or even weeks find out that they still hate each other, they do not have to start the one year term from the beginning.

If a spouse wants a quicker divorce, i.e. does not want to wait out the one year (or three year) separation period, that spouse can claim one of three statutory exceptions to the principle of a mandatory separation period. These hardship clauses (Fälle der Unzumutbarkeit) which allow for a quicker divorce, for instance in cases of physical or psychological abuse, are laid down in s. 1565 para. 2 and s. 1568 German Civil Code. The requirements are rather strict though and German family courts are reluctant to grant spouses such a fast track divorce.

2. Prepare and Execute the Marital Settlement Agreement

Wherever possible, the spouses (and their respective German legal counsels) should negotiate the terms of a Scheidungsfolgenvereinbarung (Marital Settlement Agreement). Ideally, this agreement contains all aspects that need to be dealt with: financial matters, child custody, visitation rights etc. There are certain restrictions under German law which prevent the spouses to waive all their rights. Therefore, German law also requires such a separation agreement to be recorded before a German notary public.

This German Marital Settlement Agreement can be signed at a very early stage, i.e. well before the parties even file for divorce. Taking care of these child custody and financial matters early on removes much of the tension and is thus a great way to keep on good speaking terms. It also spares the children having to watch their parents quarrel for months.

But in some case, the spouses are simply not willing or able to come to an amicable solution. In such a case, the German family court will have to decide on every single issue, from maintenance and asset separation to  pension splits and everything child related. This, obviously, can take months or even years.

3. Filing for Divorce in Germany (Divorce Petition)

Either spouse may file for divorce with the competent German Family Law Court (Familiengericht) in the court district where the couple has (had) their residence. Unless the divorce is based on a hardship clause, the application shall be filed approximately two months before the separation period ends, i.e. after about 10 years of living separate. According to s. 133 FamFG, the divorce application (divorce petition) must contain at least the following information:

  • marriage certificate
  • name(s) and date(s) of birth of minor children and their place of usual residence; birth certificate(s)
  • a statement whether the spouses have reached agreement on the issues of parental custody, visitation, child support, maintenance payments to spouse, the marital home and household property
  • whether there are any unresolved legal matters pending.

At least one spouse must be duly represented by a qualified German legal counsel

4. Divorce Decree (Final Judgment of Divorce)

Once all aspects surrounding the separation and divorce have been resolved and the judge is convinced of the irretrievable breakdown of the marriage, the German Family Law Court hands down the divorce decree (Scheidungsbeschluss, or Scheidungsurteil in old terminology). This divorce decree is, however, not immediately binding. Unless both spouses waive their right to appeal the decision (Verzicht auf Rechtsmittel), the divorce only becomes legally binding (rechtskräftig) two weeks from the day the written court order has been served to the parties.

Our law firm specialises in U.S.-German and Anglo-German legal matters. This includes drafting pre-nuptial agreements for German-American and German-British couples. We also advise and represent international couples with regard to separation and divorce in Germany. In case you are in need of an English speaking German family lawyer, don’t hesitate to call or send us an email. 

More information on litigation and legal fees in Germany is available in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Der Beitrag How to File for Divorce in Germany erschien zuerst auf GermanCivilProcedure.com.

Read for later

Articles marked as Favorite are saved for later viewing.
close
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Separate tags by commas
To access this feature, please upgrade your account.
Start your free month
Free Preview