In Germany, a marriage can generally be dissolved only after the spouses have lived separately for at least one year. What “living separately” means in legal terms is less obvious than many people assume.
Why there is a year of separation
A marriage is dissolved if it has broken down (§ 1565 para. 1 BGB). The law links this to periods of separation: if the spouses have lived separately for one year and both apply for divorce, or the other spouse consents, the breakdown of the marriage is irrebuttably presumed (§ 1566 para. 1 BGB). After three years of separation, this applies even without the other spouse's consent (§ 1566 para. 2 BGB). A divorce before the end of the first year of separation is possible only in cases of exceptional hardship (§ 1565 para. 2 BGB).
Living separately under the same roof
Moving out is not mandatory. Spouses live separately if there is no longer a domestic community between them and at least one spouse clearly does not wish to restore it. This can also be the case while both spouses continue to live in the same home (§ 1567 para. 1 BGB).
In that situation, everyday life should be separated as fully as possible: separate bedrooms, no joint household management, no regular shared meals and no domestic services for one another. Short attempts at reconciliation do not automatically interrupt the year of separation (§ 1567 para. 2 BGB).
Practical point: Record the date of separation, for example in a short written communication to your spouse. It may later be relevant both to the divorce and to financial matters.
What becomes important during the first year
• Maintenance: A claim for separation maintenance may already arise during the period of separation (§ 1361 BGB). Child maintenance must also be clarified for common children.
• Family home: If there is a dispute about who remains in the matrimonial home, the matter can be decided by the court (§ 1361b BGB).
• Children: Joint parental responsibility generally continues. The main practical questions are where the children live and how contact with the other parent is organised.
• Assets: The financial position at the time of separation may be relevant to the equalisation of accrued gains. Documents concerning accounts and other assets should therefore be secured at an early stage.
• Tax: Tax classes change after separation, generally from the following calendar year.
This article provides a general overview and does not replace advice on an individual matter.