Extramarital relationships and family law hardship provisions: Jurisprudence and current developments
The question of under what circumstances an extramarital relationship, established prior to the finalization of divorce, constitutes a so-called hardship case within the meaning of family law regulations regularly occupies the courts. In its decision of March 13, 2024 (Ref.: 2 WF 26/24), the Higher Regional Court (OLG) of Zweibrücken clarified that not every extramarital relationship during the separation period automatically leads to privileged treatment within the framework of the so-called hardship provision.
The starting point of the case was the application by one spouse seeking to shorten the statutory separation year before initiating the divorce, due to the other party having entered a new relationship. At its core, the case raised the question of the extent to which mere quasi-marital relationships during the separation period can be considered an unreasonable burden within the meaning of Section 1565(2) BGB.
Legal foundations: Unreasonableness and ‘hardship cases’ in divorce proceedings
Requirements for establishing a hardship case
According to Section 1565(2) BGB, a marriage can, upon application by one spouse, be dissolved before the end of the statutory separation year if, for reasons attributable to the personality or behavior of the other spouse, continuation of the marriage would constitute an unreasonable hardship for the applicant. In practice, this is an exception, which is why the requirements for proving such hardship are set particularly high by the courts.
Assessment of extramarital relationships
The law does not expressly provide for ‘divorce due to adultery’, so extramarital relationships after separation are not per se classified as hardship cases. According to established jurisprudence, a distinction must be made between the substantial accusation of severe misconduct and mere cohabitation with a new partner arising after separation. What is decisive is whether, based on objective standards and taking all circumstances of the individual case into account, it is truly unreasonable to hold the applicant to the statutory separation period.
Decision of the OLG Zweibrücken: Details and reasoning
In the present case, the respondent had entered into a new, non-marital relationship and was cohabiting with the new partner more than seven months before the divorce proceedings were initiated. The applicant regarded this as a serious breach of the existing marriage and argued that continuation of the formal marriage was unreasonable for him.
However, the OLG Zweibrücken confirmed that, precisely because separation had already occurred, such behavior does not justify an exception to the separation period. The main reasoning was that, in the case of an ongoing separation, entering a new partnership usually does not constitute an unreasonable emotional burden for the other spouse, but is generally seen as a consequence of the already completed separation. A further ‘particularly qualified’ breach of trust, which could exceptionally justify a hardship case, was not apparent in this instance.
Standard of reasonableness and limits of judicial intervention
The OLG explicitly pointed out that the threshold for unreasonableness is to be set high. Neither ‘normal’ marital misconduct nor a mere violation of the marital standard of living by entering a new relationship is sufficient. Only in particularly serious cases—for example, sustained public humiliation, massive denigration, or severe violations of personal integrity—can shortening the separation year be considered.
Implications for practice and those involved
Significance for those wishing to separate and their advisors
The decision sets a clear legal standard for assessing such scenarios. Spouses wishing to rely on a shortened separation period must present exceptional circumstances in a detailed manner and, in case of dispute, provide proof. The mere existence of a new partnership after separation is generally not sufficient.
Interests of the parties involved
For the spouses affected, this means legal certainty regarding how family upheaval situations are handled. On the other hand, the desire to end the legal bond as quickly as possible despite actual separation is understandable. However, the decision clarifies that the law maintains a minimum period of calm for the protection of both parties.
Conclusion and outlook
The current case law of the OLG Zweibrücken illustrates that the separation year, as a statutory prerequisite for divorce, continues to hold great significance and can only be dispensed with by relying on a hardship case in exceptional circumstances. The commencement of a new relationship during the separation period alone does not constitute such an exception. Rather, a comprehensive evaluation of the individual circumstances is always required.
In cases with complex family structures and in situations of uncertainty regarding the consideration of the parties’ respective interests, a thorough legal review is advisable. For further information and specific legal questions relating to marriage, divorce, and hardship provisions, experienced contacts at MTR Legal Rechtsanwalt are available for individual assessment.
