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Year of separation: when can you file for divorce?
“When may I finally file?” That question stands at the beginning of almost every divorce. The law ties the divorce to the failure of the marriage, and that failure is as a rule presumed only after a year of separation.
Karcher Rechtsanwälte in Frankfurt am Main, Germany, focusing on uncontested divorce and international family law. Advice in German, English and Spanish.
Part of our guide How does a divorce work?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).
The year of separation is not a bureaucratic hurdle but the yardstick by which the law establishes the failure of your marriage.
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 year of separation begins once the domestic community has been ended.
Living apart is therefore possible within the same flat 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 year of separation before filing the divorce application. In practice, your lawyer can prepare the application towards the end of the 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 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 year of separation nor suspend the periods (§ 1567 (2) BGB).
You can therefore risk a fresh start without having to fear that the 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 year of separation begins anew.
The hardship exception
In narrowly limited exceptions a divorce is possible before the 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.
The hardship divorce is a rare exception that the court examines strictly. General conflict, a new relationship or the mere wish to draw a line quickly are not enough for it. Whether a case of hardship comes into question in your case can only be judged after a close examination of the specific circumstances.
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 year of separation runs within the flat in your case or after moving out. That fixes the earliest possible divorce date, and the application can be prepared to fit.
The 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 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.
Attorney at law · focus on family law
Admitted since 2010, more than fifteen years of experience in advising and representation. The contact for new instructions at Karcher Rechtsanwälte in Frankfurt-Gallus.
Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.