Divorce despite children’s burden from parental separation: Decision-making criteria and judicial assessment
The Higher Regional Court of Stuttgart (OLG Stuttgart) published a judgment under the file number 18 UF 30/23 on January 17, 2024, which examines to what extent the psychological burden on minor children caused by their parents’ separation may constitute grounds for refusing a divorce under § 1568 BGB (Social Protection Clause). The decision clarifies under which circumstances refraining from granting a divorce may be considered and what limits the legislature has set.
Legal framework of divorce
Under German family law, a marriage may be dissolved in accordance with § 1565 (1) BGB if it has failed and marital cohabitation no longer exists. However, the legislator provides in exceptional cases that a divorce should be refrained from if and as long as the dissolution of the marriage would represent an unreasonable hardship for any joint minor children or a spouse due to extraordinary circumstances (§ 1568 BGB).
Relevant criteria for the application of the hardship clause
Requirements and limitations
In its judgment, the OLG Stuttgart emphasizes that the application of unreasonable hardship pursuant to § 1568 BGB is to be interpreted restrictively. It is not sufficient that children suffer psychological burdens due to the separation, as the legislator assumes that a separation generally involves psychological stress for affected children in most cases. Refraining from a divorce requires an exceptional constellation, the effects of which significantly exceed the ‘normal level’ of burden.
Required degree of impairment to the child’s welfare
Judicial practice requires, for the prospect of success under § 1568 BGB, that a divorce would have a serious, exceptionally intense, and concrete detrimental impact on the welfare of the child. Standard experiences of loss, as they regularly occur during separation and divorce cases, do not justify refraining from divorce. The threshold of ‘unreasonable hardship’ is only exceeded when the child’s welfare is endangered by the divorce in a manner that entails above-average, severe psychological or physical consequences and would have a lasting impact on the child.
Burden of proof and judicial review
Even taking into account child or family psychological expert opinions, the court thoroughly examines whether such an exceptional hardship truly exists. Here, it must always be carefully weighed whether the disadvantages of continuing the marriage—such as ongoing parental conflict—do not in fact outweigh those of a divorce. To this extent, the legislator comprehensively assesses that a sham marriage maintained only in name generally does not serve the child’s welfare.
Consequences of the OLG Stuttgart decision
In the decided case, the party opposing the divorce argued that the separation burdened their joint children. However, the court made it clear that these psychological burdens, however understandable and serious they may be, do not in any way meet the strict requirements of the exceptional provision. Only in the presence of demonstrable, extraordinary, and divorce-induced impairments—for example, manifest mental illnesses directly traceable to the act of separation—could refraining from divorce potentially be justified. In this case, despite the children’s suffering, the OLG did not find an ‘unreasonable hardship’ and thus adhered to the principle of divorce.
Social and legal significance of the decision
The judgment underscores the importance of a nuanced balancing of interests in the context of family law. In particular, it highlights that divorce proceedings must always be assessed on a case-by-case basis and that mere emotional burdens do not automatically protect joint children from the dissolution of their parents’ marriage. In this way, the court protects the child’s welfare from objectively unreasonable consequences, while at the same time safeguarding the fundamental constitutional rights to personality and freedom of the spouses.
Source reference
The decision is based on the judgment of the Higher Regional Court of Stuttgart (File no. 18 UF 30/23) of January 17, 2024. For correct classification, please refer to the official publication at https://urteile.news/OLG-Stuttgart18-UF-3023Kein-Absehen-von-Scheidung-bei-Leiden-der-Kinder-unter-Trennung~N33637
If you have any questions about the legal requirements and options in light of an impending separation or divorce, the lawyers at MTR Legal are available for individual consultation.
