Living separately within the marital home – Legal principles and current case law
The legal framework governing the physical and personal separation of spouses plays a central role not only in family law practice, but is also significant for high-net-worth individuals and companies when legal or financial entanglements result from such situations. In its ruling of 09.04.2024 (Ref.: 1 UF 160/23), the Higher Regional Court of Frankfurt am Main clarified the requirements for spouses living separately within a still jointly used apartment and thus provided practical guidance for legally secure structuring of this special life situation.
Principles and significance of living separately
Living separately forms the basis for numerous family law claims, in particular for filing a divorce petition (§ 1566 BGB) as well as for spousal support during separation (§ 1361 BGB). This requires a complete separation of bed and board, which is usually manifested by one spouse moving out. In reality, however, there are cases where both spouses—due to financial or practical reasons—continue to live together spatially in the former marital home. This raises the question under what circumstances living separately may be legally recognized even when the parties still share a residence.
Personal and financial separation
Crucial is not the physical separation as such, but the actual termination of the domestic partnership. What matters is that there is no household shared in any way and both spouses manage their daily lives completely independently from one another. This concerns both daily tasks (such as cleaning, laundry, or shopping) and the way personal contacts and joint activities are organized.
Particularities in the living situation
Both spouses can continue to occupy individual rooms or areas of the home. However, separation requires that each exclusively uses their private rooms, and there is no mutual access beyond the purely factual. Shared rooms—such as the kitchen or bathroom—may only be used in a manner that indicates mere cohabitation rather than togetherness. Shared meals, mutual support, or common leisure activities contradict legal recognition of living separately.
Clarification by the Higher Regional Court of Frankfurt am Main
The decision by the Higher Regional Court of Frankfurt am Main makes clear that the requirements for objectively demonstrating separation are high even in shared apartments. While it is legally permissible to live separately under the same roof, the spouses bear the burden of substantiating and proving that all contact is reduced to the absolute minimum and that no personal or financial connection is maintained.
Key findings of the court
The court made it clear that in particular the absence of joint meals and mutual care, as well as refraining from joint activities, are indications of living separately. Equally, there must be no caring or emotionally motivated acts that might suggest the continuation of the marriage. What is required is that the marriage exists only formally, not in reality.
Relevance for corporate and high-net-worth clients
These principles apply not only in the purely private sphere but also have consequences for property relations in the event of impending asset division, such as in the case of equalization of accrued gains or corporate interconnections between spouses. Understanding the nature and start of living separately is therefore of particular practical significance for economically tied spouses.
Assessment and practical consequences
Case-by-case assessment remains decisive for the legal recognition of living separately. Courts require spouses to provide a complete presentation of the actual living arrangements after separation—and set a high threshold for recognition in cases of continued shared residence. This serves to prevent abuse but also results in increased demands for documentation and clarification of living conditions to ensure legal certainty for all parties, particularly in matters of maintenance, asset equalization, or company law.
Significance for legal strategies
Especially in the context of complex asset situations and business interests, the precise determination and documentation of the timing and structure of living separately is of considerable practical importance. Questions regarding possible effects on other legal relationships—such as tenancy, corporate, or tax consequences—also play a role here.
Conclusion
The ruling of the Higher Regional Court of Frankfurt am Main emphasizes that the highest standards are set for the reality of separation for the recognition of living separately within the marital home. Spouses who choose this arrangement for personal or financial reasons should be aware of the implications for all related areas of law. Proper assessment and documentation of living circumstances can be decisive in avoiding legal disadvantages and protecting one’s own financial interests.
For further information and for legal assessment of individual cases, the lawyers at MTR Legal are available as your point of contact.
