Separated under one roof: when the year of separation counts

Can the year of separation run in the shared home?

Yes, the Trennungsjahr (year of separation) runs in the shared home as well. The law states expressly that the domestic community no longer exists even when spouses live apart within the marital home § 1567 (1) sentence 2 BGB.

Two things have to come together for this. You lead separate lives under the same roof, and at least one of you recognizably no longer wants the marital union § 1567 (1) sentence 1 BGB. You do not have to agree on that. It is enough for one side to end the marriage and live accordingly.

How the court recognizes a separation within the home

The court recognizes the separation by each of you running a household of your own, even if it consists of a single room. Case law applies a strict standard here. As a rule, that means:

• You sleep in separate rooms, and each of you has an area the other does not use.
• You shop separately, cook and eat separately and keep separate finances.
• Neither of you does the laundry, cooking or cleaning for the other anymore.
• You no longer spend free time, vacations or visits to friends as a couple.

What cannot be separated does no harm. You may share the kitchen and bathroom if the apartment allows no other arrangement. What matters is that you live there alongside each other and no longer with each other.

What applies if children live in the household?

With children in the household, you may still be there for them together. A birthday with all four of you, dinner with the children or going to a parent-teacher meeting together does not, as a rule, undo the separation. These moments are for the children.

It becomes difficult when dinner for the children turns back into a shared household. If you cook and shop for the whole family as you did before the separation, the court may find that you are not living apart at all. From that day on, the year no longer counts.

When the year of separation starts counting

The Trennungsjahr (year of separation) counts from the day on which both conditions are met: separate spheres of life and the recognizable will not to continue the marriage. Recognizable means that the other spouse can know it. A clear statement is enough, ideally in writing, for instance in a message or a letter.

So record the date right away and keep the message. In the Scheidungsantrag (divorce petition), you will later give exactly that date. When the petition can be filed at the earliest is covered in Year of separation: when can you file for divorce?

A short attempt to live together again does not reset the clock § 1567 (2) BGB. In the shared home, that holds just as it does after a move out. Only when the attempt turns back into a shared life does the year start over.

How the court checks the year of separation

At the divorce hearing, the court hears both spouses in person § 128 (1) FamFG and asks about the separation as well. In an einvernehmliche Scheidung (uncontested divorce), you both give the same date and briefly describe how you live apart in the home. The court usually asks for no more than that.

You need evidence mainly when the other side disputes the date. What counts then is the message that ended the marriage, separate accounts and recurring payments, and witnesses who know your daily life in the home. If you set up separate finances early, you have an advantage at this point.

What else applies in the shared home

Once you live apart in the home, the same rules apply as after a move out. Maintenance may be owed from the day of the separation, even while you still live under one roof. How the amount is calculated and from when it can be claimed is explained in Separation maintenance: who gets how much, and from when?

If living together becomes unbearable, one spouse can demand that the other leave the home, or part of it, to them alone § 1361b (1) BGB. The requirement is undue hardship, for instance where the children’s well-being suffers. How the court decides on this is described on our page on the marital home and contents.

Your taxes change as well, but only from the following calendar year. What still applies in the year of the separation is covered in Tax after separation: tax class, assessment, Realsplitting.

The next step

If you agree on the divorce, you can gather the details for the petition during the Trennungsjahr (year of separation), online as well through our divorce form. Our page on the uncontested divorce describes the overall framework.

The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How the further fees are calculated is explained on our page on costs.