Family Law2026-11-09

An amicable divorce with one lawyer and a notarised settlement agreement — are my rights protected?

One lawyer, one fee note, and at the hearing the other spouse simply says yes. The model is lawful and usually the cheapest. Here is where your rights are genuinely protected under it — and where they are not.

You have grown apart and are already living separately. You want to bring this to a close without a fight and without paying twice: one notarised agreement covering everything, one lawyer, one hearing. At that hearing, the other spouse simply consents. Before you sign, you want to know whether you are giving away something that can never be recovered. That is exactly the right question. And it can still be answered while the signature is not yet on the page.

In short

The model is lawful. In most cases it genuinely is the cheapest route. Only one spouse needs a lawyer. The other can consent to the divorce without one (§ 114(1) and (4) no. 3 FamFG). But that does not automatically protect your rights. They are protected only once you know the figures you are dealing with. Under the rules of professional conduct, the lawyer acts for just one of you (§ 43a(4) BRAO). The notary gives neutral guidance on the legal implications (§ 17(1) BeurkG), but does not check whether the content is favourable to you. The whole question turns on three points: the pension-rights adjustment, post-marital maintenance, and the valuation of assets.

How I can help you

Before you sign, I work out what the law would give you: the equalisation of accrued gains, the pension-rights adjustment, maintenance. I then set that against what the proposed agreement actually leaves you.
I obtain the groundwork a sound settlement needs: pension statements, an overview of assets as at the date of separation and the relevant cut-off date, and valuations for the property and any business interest.
I draft the settlement agreement and coordinate it with the notary, so the form is right and no gap is left open.
I file the divorce petition and conduct the hearing. I tell your spouse openly that I do not act for them and may not advise them.
Are you the one who is meant to consent? Then I cannot advise you once I am advising or representing the other side. I will tell you this early and openly, and I will recommend that an independent second lawyer looks over the finished draft once. That need not turn into representation in the proceedings.

Who represents whom — and who merely says “yes” at the hearing

Before the family court, spouses must be represented by a lawyer in the divorce matter itself (§ 114(1) FamFG). But this requirement does not extend to everything. No lawyer is needed to consent to the divorce, to withdraw the petition, or to revoke that consent (§ 114(4) no. 3 FamFG). This is precisely what the one-lawyer model rests on: one spouse files the petition, the other declares their consent — either on the record at the court registry or at the hearing on the record of the court (§ 134(1) FamFG).

What matters is the legal effect of that consent. If you have been living apart for a year and the other spouse consents, the law conclusively presumes that the marriage has broken down (§ 1566(1) BGB). The court then no longer examines whether the marriage can be saved. Before the year of separation is up, a divorce is possible only in cases of unreasonable hardship (§ 1565(2) BGB), and the grounds must lie in the other spouse’s conduct. That is the rare exception, not the norm.

The unrepresented spouse is not stripped of their rights, but they are constrained. They cannot file their own applications in the divorce matter or in ancillary matters without a lawyer. There are exceptions — for instance an application to carry out the pension-rights adjustment where the marriage was short (§ 114(4) no. 7 FamFG). Their real leverage, though, lies elsewhere: they can revoke their consent right up to the close of the oral hearing (§ 134(2) FamFG). So anyone who does not know the content of the deed by the time of the hearing can still walk away — though the costs incurred up to that point remain payable.

And one boundary is not negotiable: a lawyer may not act where they have already advised or represented another client in the same matter with conflicting interests (§ 43a(4) sentence 1 BRAO). So whoever advises one spouse is barred from acting for the other. There is no such thing as “our lawyer”. If I act for you, your spouse is unrepresented, and I tell them so — together with the note that they are free to seek advice from another lawyer.

What the notary checks — and what they do not

The notary is not your lawyer and is not meant to be. They do not act for one party. They assist all those involved independently and impartially (§ 14(1) BNotO). They are to ascertain the parties’ intentions and clarify the facts, to advise on the legal implications of the transaction, and to take care to avoid mistakes and protect inexperienced parties (§ 17(1) BeurkG). That is a great deal. But it is something other than the question of whether the deal is good for you. As a rule, the notary does not calculate how large your equalisation claim would be without the agreement. They do not obtain pension statements. They do not value a property.

For the central points, notarial form is mandatory in any event. It is required for a marital contract where both parties are present at the same time (§§ 1408, 1410 BGB); for an agreement on the equalisation of accrued gains during ongoing divorce proceedings (§ 1378(3) sentence 2 BGB); for an agreement on post-marital maintenance before the divorce becomes final (§ 1585c sentence 2 BGB); and for an agreement on the pension-rights adjustment before the decision becomes final (§ 7(1) VersAusglG). Alternatively, you can have such an agreement recorded in the proceedings before the court; § 127a BGB makes those provisions applicable to that route.

Nor should you rely on a lopsided agreement correcting itself later. It must stand up against § 138 BGB and § 242 BGB. For the pension-rights adjustment, § 8(1) VersAusglG expressly prescribes a review of both content and exercise. The family court is bound by the agreement only where there are no obstacles to its validity or enforceability (§ 6(2) VersAusglG). The court then examines, above all, how far the arrangement departs from the statutory order, as well as the circumstances in which it came about. But this review bites only once there is a dispute — often years later — and only in clear-cut cases. It is no safety net.

The points where an amicable deal gets expensive

Pension-rights adjustment. Spouses may make agreements about it. They can fold it into the overall division of property, exclude it wholly or in part, or reserve adjustment claims for after the divorce (§ 6(1) VersAusglG). “Each keeps their own pension” sounds fair and often is not. The adjustment covers all entitlements acquired during the marriage (§ 3(2) VersAusglG). The marriage period ends on the last day of the month before the divorce petition is served (§ 3(1) VersAusglG). Anyone who cared for children and worked part-time gives up a real item by excluding it — and it cannot be made up in old age. For a marriage of up to three years, the adjustment takes place only on application in any case (§ 3(3) VersAusglG).

Maintenance. You are free to make agreements about maintenance for the period after the divorce, including a waiver (§ 1585c BGB). This is the sharpest lever in the entire deed. For the period up to the point when the divorce becomes final, the position is not the same. Separation maintenance is due under § 1361(1) BGB. The reference in § 1361(4) sentence 4 BGB leads to a prohibition: you cannot waive maintenance for the future (§ 1614(1) BGB).

Children. Parents cannot dispose of child maintenance. Relatives in the direct line owe each other maintenance (§ 1601 BGB), and no one can waive it for the future (§ 1614(1) BGB). You may fix the amount, but you cannot abolish it. The minimum maintenance is graded by age: 87, 100 and 117 percent of the subsistence minimum for a child that must be left tax-free, with the highest band applying from the thirteenth year of age (§ 1612a(1) BGB). Joint parental responsibility continues after the divorce unless someone applies for something different. In everyday matters, one parent decides alone — the one with whom the child usually lives — while matters of significant importance require agreement (§ 1687(1) BGB). Sole parental responsibility is available only through the family court (§ 1671 BGB). Arrangements on parental responsibility and contact are measured against the welfare of the child, so they do not bind later proceedings as firmly as the financial points do.

Equalisation of accrued gains. The equalisation claim arises when the matrimonial property regime ends (§ 1378(3) sentence 1 BGB). The dispute almost never lies in the law but in the figures: initial assets, gifts and inheritances, and the valuation of property, life insurance and any share in a business.

A typical case

A couple, married 14 years, two children (9 and 13), separated for 15 months. He was employed full-time with an occupational pension; she, after parental leave, worked part-time. There was an owner-occupied flat with a remaining mortgage, which was to stay with him. The plan: exclude the pension-rights adjustment, a mutual maintenance waiver, child maintenance per the table, one lawyer, a hearing, done.

Once the pension statements were in, the sums looked different. Her entitlements from the marriage period were well below his. Childcare and part-time work had fallen precisely into those years. The answer was not more conflict but a different deed: carry out the pension-rights adjustment for the marriage period, and in return a lower equalisation payment on the flat. Instead of a full maintenance waiver, a time-limited, quantified amount, running until the younger child reached a particular school year. Child maintenance for the older child in the third age band. Still one lawyer, one hearing, one fee note — only now with the figures on the table before anyone said “yes”.

Common mistakes

The agreement comes off the internet, or is drawn up at the notary’s office “to taste” — with no one having worked out what the law would actually give.
You exclude the pension-rights adjustment before the pension statements for both spouses are in.
You sign a full maintenance waiver while the childcare in practice falls on one of you.
The consenting spouse never has the draft looked over. “One lawyer is surely enough” — and they take that to mean this lawyer is looking out for them too.
You estimate asset values instead of having them valued — especially the property, life insurance and business interest.
You forget to settle who bears the lawyer’s and notary’s costs as between the two of you.
The flat stays with one spouse while the loan stays with both: the bank is not bound by your agreement.

Frequently asked questions

Yes. The requirement to be represented does not apply to consenting to the divorce, withdrawing the petition, or revoking that consent (§ 114(4) no. 3 FamFG). The declaration can be made on the record at the court registry or at the hearing on the record of the court (§ 134(1) FamFG). Consent can be revoked up to the close of the oral hearing (§ 134(2) FamFG) — meaning the hearing at which the court decides on the divorce.

Can one lawyer advise both of us, since we are in agreement anyway?

No. A lawyer may not act where they have already advised or represented another client in the same matter with conflicting interests (§ 43a(4) sentence 1 BRAO). So if they advised one spouse first, they are barred from acting for the other. This holds even where you are in complete agreement, because when money is involved the interests run in opposite directions. The unrepresented spouse can, however, obtain advice once from another, independent lawyer. That need not lead to representation in the proceedings.

Is my waiver of the pension-rights adjustment really final?

A notarised agreement on the pension-rights adjustment (§ 6(1), § 7(1) VersAusglG) binds the family court, provided there are no obstacles to its validity or enforceability (§ 6(2) VersAusglG). It must stand up to a review of both content and exercise (§ 8(1) VersAusglG). But you should not count on that: the court only examines it once there is a dispute, and only in clear-cut cases. Plan as though the waiver were final.

Can we settle child maintenance conclusively in the deed?

You can fix the amount, yes; exclude it, no. The maintenance obligation flows from § 1601 BGB, and no one can waive maintenance for the future (§ 1614(1) BGB). An agreement below the age-related minimum maintenance (§ 1612a(1) BGB) is therefore no help to you — the child can later claim the difference.

What does this option cost by comparison, and why?

For costs purposes, the divorce matter and any ancillary matters count as a single set of proceedings (§ 44(1) FamGKG). The procedural value of the divorce is set at the court’s discretion; what matters is the scope and importance of the case, together with the income and assets of both spouses — on the income side, the net income earned over three months by both — and the value may not fall below 3,000 euros (§ 43 FamGKG). Every ancillary matter pushes this value up: parental-responsibility matters by 20 percent, capped at 5,000 euros per matter, the other ancillary matters at their own value (§ 44(2) FamGKG). Whoever settles everything beforehand by notarial deed keeps the ancillary matters out of the proceedings and pays only one lawyer’s bill under the RVG; set against that are the notary’s fees, which follow the transaction value of the agreement. When the court pronounces the divorce, it offsets the costs against each other (§ 150(1) FamFG) — the upshot being that each party bears their own out-of-court costs and the court costs are shared, unless you agree otherwise (§ 150(4) sentence 3 FamFG). What the total comes to in your case I will tell you at the first meeting, and I will check at the same time whether legal-expenses insurance or legal-aid for the proceedings applies.

Your next step

An amicable divorce is not a surrender of your rights. It is a surrender of the fight over them. But for that you need to know what you are giving away — and that is not set out in the deed, it lies in the figures behind it. Send me the draft settlement agreement before the notarial appointment is fixed, and add the pension statements, proof of income and a list of the assets. I will then tell you concretely which three or four points actually move money in your case. I will also tell you what I would change — and what you can safely leave as it stands. After that, if you wish, I will conduct the proceedings as the one lawyer the law requires. You can find more on this area under Civil law. This article is general information and not legal advice in an individual case. I work nationwide, and we can talk by video or phone.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-11-09.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

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