There are many different reasons why a marriage ends and divorces. But they all have one thing in common: the year of separation. During the separation period, however, certain conditions must be observed.
Around 140,000 marriages ended in divorce in 2020. And while there are myriad reasons for breaking up, there is only one road to divorce: the year of separation. If you want to file for divorce in this country, you must be able to prove that you have lived separately for a year. During this time, sexual intercourse with the ex is allowed from time to time, but sharing the fridge is taboo. ARAG legal expert Tobias Klingelhöfer explains the rules of the game for the year of separation.
According to Section 1566 of the German Civil Code (BGB), spouses must live apart for at least one year before they can file for divorce. This year, both spouses should be clear about whether the end of the partnership is inevitable. After this period, the legislature presumes that the marriage has broken down, at least if both spouses subsequently file for divorce by mutual agreement, or if one of the spouses files for divorce and the other spouse agrees.
If you are in a hurry to get a divorce, you can file a divorce application about four to six weeks before the end of the year of separation. It could be a bit more problematic if only one of the two spouses wants a divorce and the other is opposed or even denies the separation. Although he has to prove that the marriage has not failed, but can slow down the whole process. After a three-year separation period, a divorce can also be carried out against the will of the partner.
However, there is a special case: A marriage can also be dissolved before the end of the year of separation if there is a hardship such as violent behavior or permanent alcohol or drug consumption. An affair with another partner, on the other hand, is usually not a sufficient reason for ending the year of separation prematurely.
During the year of separation, there must be no domestic or economic community between the spouses. Mutual benefits are taboo. In other words: you sleep, eat and holiday separately. If physical separation by moving out is not possible, a year of separation can also be completed under one roof (section 1567 paragraph 1 sentence 2 BGB). But to do this, clear rules should be defined – similar to a flat-sharing community – such as paying rent and other living costs, using the kitchen, refrigerator, bathroom or washing machine. Especially if children live in the household, shared meals and leisure activities are allowed from time to time without affecting the length of the year of separation. Even sex with the ex is fine as long as the beds are separated.
The year of separation does not have to be officially registered or even applied for. But in order to avoid trouble about the duration of the separation year, the spouses should record the separation wish and the date of the separation in writing. If you want to be on the safe side, have a lawyer sign a corresponding agreement.
If the income levels of both spouses are different, maintenance may have to be paid in the year of separation. The lower-earning partner receives the money for the entire period of the separation, even if it lasts longer than twelve months. The claim only ends with the legally binding divorce decree. As with so-called post-marital maintenance, which may have to be paid after the divorce, the amount of the separation maintenance depends on the respective income of both partners. Put simply, each spouse is entitled to half of the total income. The less earning part is therefore entitled to corresponding maintenance.
Maintenance does not have to be paid if both earn the same amount or the couple has only lived together for a few weeks. However, the entitlement can also end before the divorce, for example if the beneficiary lives together with a new partner in a stable partnership.
I recommend married couples to use the time of the separation year for follow-up arrangements in order to avoid lengthy and, above all, costly divorce proceedings in court. In a so-called separation and divorce agreement, for example, it could be clarified by a notary how the assets will be divided, who will pay whom how much maintenance, or how custody and visitation rights will be dealt with. The distribution of household goods can also be recorded here.
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