Divorce: Date of Separation and Gain Compensation

BGH Decision of November 12, 2025 (Case No. XII ZB 203/25): Date of Separation Cannot Be Determined in Isolation

The date of separation is often financially significant in a divorce – particularly for the gain compensation, but also for information claims and determining the separation year. The Federal Court of Justice (BGH) clarified in a decision dated November 12, 2025 (Case No. XII ZB 203/25) that the date of separation cannot be determined “in advance” in a separate interim proceeding.

This means: Even if spouses dispute the exact date, this date cannot be determined separately from the main application (such as gain compensation, maintenance, or divorce) in a binding manner. The clarification must take place in the respective proceeding, where the date is legally relevant.

Why the Date of Separation is Important

The date of separation plays a central role in several areas:

• Gain Compensation (§§ 1373 ff. BGB): For the gain compensation, the initial assets (at the time of marriage) and the final assets (generally at the time the divorce application is served) are decisive. Nevertheless, the separation is practically very relevant because from this point on, asset shifts often occur and information is often demanded as of the date of separation.
• Information Claims: In practice, information and evidence are often requested for specific dates (e.g., separation, serving of divorce application, current cut-off dates). Differences in the separation date can influence which asset states must be disclosed.
• Separation Year (§ 1565, § 1566 BGB): Regularly, a divorce requires that spouses have been living separately for at least one year.
• Maintenance: Separation and its timing can be relevant for separation maintenance and its start as well as for assessing living conditions.

Important: The gain compensation is not legally calculated “on the day of separation” but generally relates to the time the divorce application is served for final assets. Nonetheless, the separation cut-off date remains a frequent point of contention because it plays a significant role in actuality and in information and review periods.

Typical Dispute: Different Separation Dates

In many divorces, spouses give different dates for the separation. This can directly affect the representation and classification of asset positions – such as account balances, portfolio movements, gifts, withdrawals, or whether an asset reduction was “disloyal.”

In the case decided by the BGH, the spouses’ dates differed: The husband assumed a separation on November 1, 2022, while the wife assumed it was already on January 31, 2022. Both sought information about asset conditions, which were to be based on the respective separation date.

Interim Declaration Request: BGH Finds It Inadmissible

The husband attempted to resolve the dispute over the separation date through an interim declaration request – with the aim of having the date legally determined. The family court rejected the request as inadmissible. The appeal was unsuccessful. The BGH confirmed these decisions.

According to the Federal Court of Justice (BGH), an interim declaratory application is only permissible if alegal relationship that can be establishedwithin the meaning of § 256 ZPO exists. This is not the case with the “separation date.”

Legal relationship or mere fact – decisive distinction

The BGH clearly distinguishes:

• Legal relationshipsare capable of being established, that is, concrete legal relationships between persons or with things (e.g., the existence/non-existence of a claim or a contractual relationship).
• Not capable of being establishedare isolated preliminary questions or individual facts – even if they are important for the outcome of a procedure.

According to this case law, the separation dateis merely a legally relevant fact. Legal effects are not linked to the date itself, but to the status of living separately. Therefore, there is no legal relationship that could be conclusively clarified by interim determination.

No isolated preliminary decision – clarification only in the main proceedings

The BGH also sees no sufficient practical need for a “preliminary decision” on the separation date. In particular:

• The separation date must be examined in the respective proceedings (e.g., maintenance, asset increase, divorce requirements).
• In family court proceedings, the principle of official investigationapplies: The court must investigate the decisive facts ex officio.
• Even for special situations – for instance, in connection with asset reductions and their treatment in asset increase compensation (cf. § 1375 para. 2 BGB) – it is crucial that the facts are clarified in the respective main proceedings.

Consequently, disputes over the separation date are not settled “separately,” but are included in the taking of evidence and assessment in the main proceedings.

What “Living Separately” legally means (§ 1567 BGB)

For the separation year and many subsequent questions, it is crucial when the spouses are legally considered to be living separately. According to § 1567 BGB, living separately occurs when

• the common household no longer exists and
• at least one spouse is clearly unwilling to restore it (intention to separate).

Moving out is a strong indication, but not strictly necessary. Conversely, living separately can also occur within the shared apartment exist (“separation of table and bed”), when separate household management, separate finances, and a consistent separation of life areas are visibly implemented.

That moving out alone is not automatically sufficient is also shown by the case law of the higher courts (for example: OLG Karlsruhe, decision of February 3, 2025, Az. 16 UF 165/24), according to which the overall circumstances along with the visible intent to separate must always be evaluated.

Practical tips: Document the separation comprehensibly

Because the separation date cannot be determined in isolation, clean documentation is especially important. The more specific the circumstances, the easier it is to prove the separated living later.

• Written declaration of separation (e.g., by letter or e-mail) with date.
• Document the living situation (move-out, room division, separate sleeping areas).
• Separate finances (separate accounts, separate payments, comprehensible division of rent/utilities).
• Organize everyday life/household separately (shopping, cooking, laundry, leisure activities).
• Witnesses (e.g., family, friends, neighbors) can be helpful in case of dispute.

Classification and legal notice

The decision of the BGH (Az. XII ZB 203/25) provides clarity: The separation date is not an independently ascertainable legal position, but a factual question to be examined in the respective main proceedings. Those who wish to enforce or defend against asset or maintenance claims should be prepared for the separation date to be clarified within the evidence assessment – not through an isolated preliminary decision.

Note: This article serves general informational purposes and does not replace individual advice in specific cases. For the assessment of specific claims (e.g., accrued gains, disclosure, maintenance), the circumstances of the individual case are always decisive.

In case of questions regarding separation, divorce, equalization of accrued gains, and disclosure claims, legal advice may be beneficial. More information can be found in the area of Family Law. If you need support, you can contact us.