Higher Regional Court Zweibrücken: Only the cheated spouse may possibly invoke hardship
Before a marriage can be dissolved, the couple must usually complete the separation year. However, there can be exceptions, and in cases of hardship, the separation year may be waived. Infidelity can under certain circumstances be such a hardship case. However, only the cheated spouse can invoke this and not the one who has had an extramarital affair, as shown by a decision of the Higher Regional Court Zweibrücken dated February 7, 2024 (Case no.: 2 WF 26/24).
Family law stipulates that a marriage should not be dissolved before the end of the separation year. This ensures that the marriage has indeed failed and cannot be mended, says the business law firm MTR Legal Attorneys, which advises private clients in family law, among other areas.
Waiving the separation year in case of hardship
The separation year can only be waived if continuing the marriage is unbearable for one partner and a so-called hardship case exists. Examples of hardship cases include violence in marriage, severe insults and gross violations of honor, continued infidelity, or if the partner leaves before or shortly after the birth of a joint child. Whether a hardship case exists must always be decided by the court on an individual basis. Infidelity can be a reason for such a hardship case. However, only if the cheated spouse wants the divorce.
This is also shown by a decision of the Higher Regional Court Zweibrücken dated February 7, 2024. In this case, the wife had an extramarital relationship. She has been living separated from her husband since August 2023 and became pregnant by another man shortly thereafter. The birth of the child is expected to be in June 2024, thus before the end of the separation year. The woman did not want to wait that long for the divorce. She invoked § 1565 of the German Civil Code (BGB). According to this, a marriage can also be divorced before the end of the separation year if continuing the marriage constitutes an unreasonable hardship.
Continuation of the marriage not reasonable
Such a hardship case exists, argued the woman. However, the continuation of the marriage was not unreasonable for her, but for her husband due to the pregnancy. In addition, sticking to the marriage was also unreasonable due to her psychological condition – the woman claims to suffer from depression.
The woman had applied for legal aid for the proceedings, which, however, was denied by the competent family court. The court justified this decision by stating that the intended divorce due to hardship had no chance of success. Neither the pregnancy nor the illness constituted a hardship case, the court clarified. Rather, the reason for hardship must lie in the person of the other spouse according to § 1565 Para. 2 BGB.
The woman pursued her concern further and argued that for a hardship divorce, it would be sufficient that the husband is not the father of the child and also does not want to be regarded as such.
Higher Regional Court Zweibrücken rejects application
The woman’s complaint was unsuccessful before the Higher Regional Court Zweibrücken. The OLG confirmed the decision of the family court that the prerequisites for a hardship divorce do not exist. According to § 1565 Para. 2 BGB, a marriage can only be dissolved before the end of the separation year if the continuation of the marriage constitutes an unreasonable hardship for the applicant for reasons that lie in the person of the other spouse. Although the affair and pregnancy of the woman could possibly allow the husband to demand a hardship divorce, not the woman. Her pregnancy is not a circumstance that is based in the person of the other spouse, the OLG clarified.
That the reasons for a hardship case must lie with the spouse is to prevent the applicant from being able to invoke their own shortcomings in a hardship divorce. Reasons that primarily lie in the person of the applicant are irrelevant from the outset. Therefore, the woman cannot invoke her depression, according to the Higher Regional Court Zweibrücken.
MTR Legal Attorneys advise on divorce and other family law issues.
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