Year of separation: when can you file for divorce?

Why is the year of separation necessary?

A marriage can be divorced once it has failed (§ 1565 BGB). The law does not, however, examine that failure in every individual case; it works with a presumption.

Where the spouses have lived apart for a year and both apply for the divorce, or the other consents, the failure is irrebuttably presumed (§ 1566 (1) BGB). The court then no longer has to examine any grounds. Only after three years of separation does this presumption apply without the other’s consent as well (§ 1566 (2) BGB).

When does the year of separation begin?

What counts is the actual separation (§ 1567 BGB), not an official act and not necessarily moving out of the shared home. The Trennungsjahr (year of separation) begins once the domestic community has been ended.

Living apart is therefore possible within the same apartment as well, for instance where moving out cannot be financed at first. The condition is that you keep separate spheres of life: no joint housekeeping, separate finances, no shared economy.

Because the moment of separation is decisive for the calculation, you should record it as precisely as possible. A date, a short written note or a clear message to your spouse help you to prove the start later on.

Timing the application properly

You do not have to wait literally until the last day of the Trennungsjahr (year of separation) before filing the Scheidungsantrag (divorce application). In practice, your lawyer can prepare the application towards the end of the Trennungsjahr (year of separation) and file it so that the court acts promptly once the year has run.

The court will, however, only set a date for the divorce once the Trennungsjahr (year of separation) has run at the time of the decision. Where the application is filed shortly before, the court examines the expiry of the year with reference to the hearing, not to the day of filing.

That way the preparation time can be used sensibly without losing weeks unnecessarily. The statutory minimum of twelve months of separation remains untouched by it.

Attempts at reconciliation do no harm

A separation rarely runs in a straight line. The law takes account of that: short attempts to restore the marital community neither interrupt the Trennungsjahr (year of separation) nor suspend the periods (§ 1567 (2) BGB).

You can therefore risk a fresh start without having to fear that the Trennungsjahr (year of separation) will start running from scratch. Only where a short attempt turns into lasting cohabitation again is the separation genuinely at an end, and the Trennungsjahr (year of separation) begins anew.

The hardship exception

In narrowly limited exceptions a divorce is possible before the Trennungsjahr (year of separation) has run. That applies where holding on to the marriage would be an unreasonable hardship for one spouse for reasons lying in the person of the other (§ 1565 (2) BGB), for instance in cases of serious violence.

What you can do now

Your greatest influence lies right at the beginning: in recording the moment of separation cleanly and in the timing of the application.

Note down the date of the separation and clarify early whether the Trennungsjahr (year of separation) runs within the apartment in your case or after moving out. That fixes the earliest possible divorce date, and the application can be prepared to fit.

The Trennungsjahr (year of separation) is not merely a waiting time. With the separation, rules of its own take effect at once, for maintenance, the home and tax, and anyone who uses these months has an application ready at the end of the year rather than a dispute: separation before the divorce: what applies at once. Time-critical above all is maintenance, which retroactively exists only from the moment it is demanded; on that, separation & maintenance.

Once the year is foreseeably over, the next questions follow: how long does a divorce take? calculates the periods after that, and how does a divorce work? describes the proceedings as a whole. Where you agree, it is worth looking at the amicable divorce.

When exactly your Trennungsjahr (year of separation) began and when the application is best placed we sort out in the first conversation, if needed together with what has to be settled in these twelve months anyway. Appointments take place at Frankenallee in Frankfurt-Gallus or by video.