An employer has to comply with some duties of care with regard to employees. In this context, employees can sue for compliance with the duties of care. However, this primarily relates to safety and equipment in the workplace.
In relation to domestic violence, a workplace policy is a self-commitment by companies to take a stand against domestic violence internally and externally.
The taking of leave linked to certain events or occasions may be agreed with the employer.
Section 616 of the German Civil Code provides for continued remuneration if the employee is prevented from performing services through no fault of their own. This includes, in particular, participation in a family event involving close family members, such as a wedding or funeral, but it can also include the need to care for other close family members if there are no alternative care arrangements and the care is necessary according to medical evidence.
In general, an individual's opportunity to be granted citizenship, residence or asylum in Germany is not negatively affected by approaching or seeking help from the national authorities in Germany to receive protection from domestic violence. This is the case regardless of whether the spouse is German, a permanent resident in Germany or neither.
However, problems may arise where a victim only has a derivative right of residence in Germany. In this case, a divorce from the violent spouse may lead to a loss of the right to residence in Germany. Under specific conditions, the right to residence may continue to exist for a limited period despite a divorce. The victim will have an independent right of residence in Germany for one year after the divorce, where the spouses have lived in marital cohabitation lawfully for at least three years (in accordance with Section 31, paragraph 1, No. 1 of the German Residence Act — Aufenthaltsgesetz). However, the requirement of having lived together in marriage for three years is waived where necessary to avoid a particular hardship. Such hardship is explicitly considered to exist in the case of domestic violence.
There are no specific legal immigration remedies for immigrants for having cooperated with national law enforcement on domestic violence. However, typically, the national authorities and courts have a margin of appreciation in decisions on a right to residence or asylum. Cooperation with law enforcement on a domestic violence case may be taken into account as a positive factor. Cooperation with law enforcement authorities will not have a negative impact on the battered immigrant's perspective to be granted a right of residence or asylum.
German domestic violence law does not directly discuss asylum accessibility.
Domestic violence suffered by the asylum seeker in their state of origin is only an exceptional ground for asylum. Generally, individuals in Germany are granted at least the same rights as provided for under the UN Convention Relating to the Status of Refugees as a minimal standard (Section 2 of the German Asylum Act — Asylgesetz). Systematic, gender-based violence in the state of origin may constitute a well-founded fear of persecution because of "a particular social group" and, therefore, a ground for asylum, only if committed by state officials. Therefore, domestic violence committed only by the victim's spouse or family without the systematic involvement of the state is usually not a sufficient ground for asylum in accordance with German jurisprudence.
Asylum seekers subject to domestic violence in Germany do not benefit from specific asylum rights for the fact of being victims of domestic violence. The occurrence of domestic violence in Germany does not lead to an asylum right or a ban to deport the victim. However, depending on the concrete circumstances of the case, it may lead to a ban on deportation where the asylum seeker will presumably be a victim of domestic violence in their state of origin by the offender's family.
However, the offender, despite having been granted a right to asylum, may be expelled if the offender is for grave reasons considered a threat to the security of Germany. In individual cases, this may apply to domestic violence offenders as well.
The victim would have to seek a civil protection order since the civil courts are responsible for issuing a protective order when a member of the military is the abuser. There are no military courts in Germany.
The child's best interest must always to be taken into account with any court measures affecting a child. The court will apply two tests:
- Is it in the best interest of the child to end the shared custody of both parents?
- Which parent's custody is in the better interest of the child?
The court may proceed to take action to remove children from a dangerous situation. In accordance with Sections 1666 and 1666a of the German Civil Code, the court may ban the offender from using the home, prohibit contact, take away physical custody, etc. The court can issue warnings, orders and prohibitions, such as prohibition on contact and the removal of the right to determine the child's place of residence or of parental custody to advert danger to the child. A decision that restricts or excludes the right of contact for a long period or permanently may only be made if the best interests of the child are likely to be endangered (Section 1684 (4) of the German Civil Code). The court can order supervised access, which entails visitation in the presence of a familiar person or an employee of the Youth Welfare Office or another organization. For example, for the child's protection, the court can order that contact may only be provided under the presence of a third party (Section 1684 (4) of the German Civil Code). This is referred to as "accompanies contact" and it allows the family court to ensure that contact with the child is in a neutral place and in the presence of a specialist. One can also apply to the relevant family court for temporary sole custody/parental care of the children to avoid putting them at risk. Irrespective of a custody order, a parent has the right to access their children. However, if the victim or the children are at risk or the children witness violence, the victim can apply to the family court for temporary or permanent suspension of this right of access.
A competent youth welfare office is heard by the court in protection against violence proceedings. In addition, the court can appoint a guardian to act as the child's attorney who will represent the child's best interests and bring them into the proceedings. In accordance with Section 1666 of the German Civil Code, when the physical, mental or psychological best interests of the children or their property are endangered and the parents are not sufficiently willing or able to avert the danger, the child will be officially protected by the competent family court. Lastly, without hearing the parties' concerns, the court may consider issuing a temporary injunction immediately in case of danger to a child's well-being.
The Civil Code requires certain conditions to be satisfied before a landlord can terminate a rental agreement. The fact that a tenant has become a victim of domestic violence does not legally justify eviction from the home but there are no laws that explicitly prevent such a situation.
By an order, the police can exclude the abuser from the residence immediately. If there is a risk of further violent acts, the police can issue an order preventing return. In some states, police can also issue a temporary ban on contacting and approaching the victim.
Section 2 (1) of the Act on Civil Law Protection Against Violence states that the injured person may request to leave the jointly used residence for sole use.
There are some restrictions in the German Civil Code on the ability of the spouse to sell the joint house, even if one of the spouses owns it. The application of those restrictions depends on the legal matrimonial property regime.
Furthermore, Section 2 (4) of the Act on Civil Law Protection Against Violence states that if the victim has been given the residence for sole use, the abuser must refrain from doing anything that is likely to make it difficult or impossible for the victim to exercise the right of use.
