🤝 Consensual vs. contested divorce
In brief
A "consensual divorce" is spoken of when both spouses want the divorce and have already agreed on the essential consequences – such as maintenance, assets, contact with the children – or do not want these points to be settled in contested court proceedings. Legally it is enough if one side files the petition and the other consents (§ 1566 Abs. 1 BGB) – then only one lawyer needs to be instructed.
In a "contested divorce" the spouses disagree, usually about ancillary matters such as maintenance or accrued gains, which are then decided by the court in the joint proceedings. This usually takes longer and costs more, because both sides need their own lawyers and expert opinions or several hearings may become necessary. Pension rights equalisation runs alongside in both cases automatically, regardless of whether the divorce is consensual or contested.
Step by step
- Clarify the points of agreementTalk as early as possible about maintenance, assets, the home and – where there are children – custody and contact rights.
- Put the agreement in writingArrangements on maintenance or accrued gains should be notarised or recorded in court in order to be effective and enforceable.
- Instruct one joint lawyerWith genuine agreement, legally one lawyer's representation is enough for the divorce petition; the other side merely consents.
- In case of disagreement, secure your own representationIf ancillary matters are contested, each side should instruct its own lawyer in order to be able to file its own applications.
- Consider mediationIn case of conflict, mediation can help find a consensual solution before the court has to decide contentiously.
Deadlines
- A lawyer may legally represent only one party – even with complete agreement, the same person cannot advise both spouses as a lawyer (conflict of interest, § 43a Abs. 4 BRAO).
- "Consensual" refers to the divorce itself and the ancillary matters – pension rights equalisation is, independently of this, in principle always carried out ex officio, except in marriages shorter than three years.
- Oral agreements without notarial or court recording are often hard to enforce – written, legally secure agreements protect both sides.
In depth · legal basis, figures and practice – for advisers and professionals
Legal framework
The law does not expressly know the term "consensual divorce"; in practice it describes the case where one spouse files the divorce petition and the other consents (§ 1566 Abs. 1 BGB), and usually that no ancillary matters are brought into the joint proceedings as contested. The fewer ancillary matters are contested, the faster and cheaper the proceedings run in practice, because fewer taking of evidence and hearings are needed.
Lawyer's conflict of interest
Under § 43a Abs. 4 BRAO (Federal Lawyers' Act), a lawyer may not represent conflicting interests – in a divorce this rules out joint representation of both spouses by the same person, even with complete agreement.
Advantages of notarial or court recording
Agreements on maintenance, accrued gains or pension rights equalisation should be notarised or recorded in court, so that they are enforceable and – for certain provisions such as an exclusion of pension rights equalisation or waiver of post-divorce maintenance – withstand judicial review of their validity.
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