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Divorce by mutual consent: prerequisites

Marriage between two people is not only a love relationship. When you marry, you also enter into a contract. Many people are not aware of this to its full extent. Even though it may be more romantic to only think about the wedding dress, the cake or the guest list, it makes sense to find out what mutual rights and obligations apply in a marriage before getting married. Especially when you are getting married. Which prerequisites have to be met for an divorce by mutual consent.


Divorce by mutual consent?

If a divorce occurs, the vast majority of marriages end amicably. In 2020, 87.1% of all divorces were a consensual divorce. However, what the statistics often conceal or do not show is that many amicable divorces are preceded by long negotiations or even court proceedings until an agreement is finally reached. People who are in the process of getting divorced often find themselves in an exceptional situation. The original plan to share life with the other person no longer exists. In some form or another, there are always mutual slights, resentments and incomprehension between the spouses seeking divorce. But the spouses have to find agreements on many points, so that an amicable divorce can succeed. A challenge.


Prerequisites for a Divorce by mutual consent

If an amicable divorce is sought, certain conditions must be met. Often the first prerequisite already fails, no matter how trivial it may sound: Both people must want a divorce. If only one person wants a divorce, a divorce by mutual consent is out of the question.

If the marital partnership has been dissolved for at least six months and both want a divorce, they can jointly request or apply for a divorce at the competent district court. The court will then announce a date for the divorce by mutual consent. Attention: The required dissolution of the marital partnership does not refer to a spatial or domestic separation. This arises confusion more often than not because in Germany there is a separation year. In Austria, people must be advised against simply moving out of the matrimonial home in the event of a dispute, because this could be considered serious marital misconduct. Rather, the dissolution of the marital community means that the spouses are separated and the “will to marry” no longer exists. This can also be the case in the same home. The marriage must be incurably broken. In practice, spouses who want to divorce are sometimes asked by the court about this breakdown. So if you really want to get divorced, you should be rather cautious with descriptions of recent romantic holidays together.


Agreement on the main consequences of divorce

In addition, the spouses must reach an agreement on the main consequences of the divorce. In view of the far-reaching consequences (e.g. also in terms of social security and pension law), it is advisable to seek legal advice or comprehensive information in advance, even in the case of divorces by mutual consent. Often, people agree to conditions that are disadvantageous to them, simply in order to quickly end the stressful relationship situation. However, the consequences of a divorce can accompany a person for years, which is why it is better not to rush into anything in this regard.

The main consequences of divorce include how joint assets (marital savings and marital property) or debts are to be divided. Another important question is whether there should be spousal support after the divorce. In the case of a consensual divorce, there is per se no legal right to post-marital maintenance between the spouses. However, such post-marital maintenance is often agreed in the context of a consensual divorce. In this way, for example, loss of income can be compensated for if a person has not worked or has only worked partially for a longer period of time due to family reasons.

Spouses who have joint minor children must also show the court that they have taken part in parental or educational counselling at a suitable centre. Furthermore, it must be determined who should have custody of the childrenafter the divorce. The parents can agree on joint or sole custody of one person. In the case of joint custody, it must be decided in whose household will be the main residence of the child. Normally, both parents will continue to exercise joint custody even in the case of divorce. In addition, it must be clarified how the visitation with the other parent can be arranged, i.e. when he or she will look after the children. Furthermore, an agreement must be reached on child support.


In summary, an agreement is needed regarding: the division of marital property, spousal support after the divorce, (under certain circumstances) the custody of the joint children as well as child maintenance and visitation.

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