Frankfurt Higher Regional Court: Separation does not require moving out of marital apartment
The separation year precedes the divorce of a marriage. During this year, the couple no longer forms a household together. However, this does not automatically mean that one partner must move out of the shared marital apartment. In its decision dated March 28, 2024, the Frankfurt Higher Regional Court confirmed that spouses can live separately in a shared apartment (Case No.: 1 UF 160/23).
Apart from exceptional cases, a divorce is only possible after the separation year. During this time, the couple must not form a household together and must live separately in all aspects. Despite this, the marital apartment can continue to be shared at least temporarily, according to the law firm MTR Legal, which advises on family law matters.
The Frankfurt Higher Regional Court also emphasized in its March 28, 2024 decision that moving out of the shared marital apartment is not a requirement for separation. This is even more relevant if children live in the household, the court clarified.
Separation date important for calculating asset compensation
The date of the couple’s separation is also crucial for dividing assets. Once a divorce petition is filed, both partners have reciprocal rights to obtain information about the other’s assets at the time of separation. This aims to prevent financial manipulation that could reduce the rightful partner’s compensation.
In the case before the Frankfurt Higher Regional Court, the couple disagreed on the separation date. Although they had separated and wanted a divorce, they continued living under one roof because of their three minor children. To calculate the post-divorce asset compensation, both partners filed mutual requests for information about each other’s assets at the time of separation. The husband claimed a later separation date than the wife. The responsible district court used the later date as the official separation date.
No continuation of household togetherness
The wife objected to this decision and won at the Frankfurt Higher Regional Court. The court clarified that the separation date depends on when the couple objectively no longer maintained a household together and when at least one partner had no interest in continuing the relationship. For separation, it is not necessary for one partner to move out of the shared apartment. It’s sufficient if the partners live separately in the marital apartment to the maximum extent possible given the space available. However, complete separation isn’t required, the court stated.
Externally, the couple must visibly live and sleep separately and no longer manage a shared household. Any remaining joint activities should be insignificant to the marital relationship. Isolated acts of help or support do not hinder the separation, the court elaborated.
Friendly interactions do not rule out separation
A friendly and reasonable relationship between the partners does not preclude separation. This is especially relevant when children live in the household, the court added. For the children’s best interests, the parents must behave well even during separation. Their relationship often affects how children handle their parents’ separation. Therefore, “courteous interaction and shared meals with the children do not contradict the assumption of living separately,” the court clarified.
In this case, the objective and subjective requirements for separation were met once the wife had clearly informed her husband by email that she opposed continuing their household. The husband then only used a sleeping area and bathroom in the basement. No personal relationship existed between the spouses, even if there were occasional favors like those that occur outside of marriage, the court ruled.
MTR Legal provides advice on separation, divorce, and other family law matters.
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