Decision of the Higher Regional Court of Karlsruhe dated February 3, 2025 – Ref. 16 UF 165/24
Before a marriage can be divorced, the couple must usually complete a separation year, which must last at least one year. According to the legal definition of marriage, the spouses must live separately for at least one year before divorce can be filed. The separation year begins once the spouses clearly separate in terms of living arrangements and finances, and each expresses the intention to divorce. This section focuses on the legal issues surrounding the requirements and process of the separation year. Merely being physically separated does not constitute living apart. Rather, the separation must be clearly declared and consistently implemented, as a decision of the Karlsruhe Higher Regional Court from February 3, 2025 demonstrates (Ref. 16 UF 165/24).
Requirements for Living Apart
During the separation year, the couple must not form a household together. There must be a clear separation in terms of living arrangements and finances. One spouse moving out of the marital home is not always required. The separation year can also be spent in the same apartment if both spouses run their own households and maintain separate lives. Under certain circumstances, the couple may continue to live under the same roof, but there must be a clear separation of meals and sleeping arrangements.
Practical Implementation in the Shared Home
Separation also becomes evident by the spouses discontinuing shared routines and no longer using certain rooms together. The living situation during the separation year plays a crucial role as it documents compliance with legal requirements. Both spouses must maintain separate households and finances during the separation year in order to legally document the separation. Also, one spouse moving out does not necessarily mark the start of the separation year, according to law firm MTR Legal Rechtsanwälte, which advises, among other things, on family law.
It is often questioned how living apart can practically be implemented in the same apartment. Considering the breakdown of the marriage, it should be noted that the principle of marital solidarity continues to apply during the separation year, particularly regarding maintenance claims.
Physical Distance Alone Does Not Constitute Separation
The case before the Karlsruhe Higher Regional Court is also a good example of how the separation year is put into practice and legally assessed by the courts. In the underlying case, the couple married in 2007 and, since 2015, lived with their daughter in a house. The marriage increasingly deteriorated over time. The spouses no longer participated in shared activities.
In August 2022, the husband moved into his parents’ house, about 500 kilometers away, to care for his mother in need of care and to start a new job. Nevertheless, he formally kept his previous residence and occasionally visited his wife and daughter on weekends. No intimate contact or shared leisure activities took place, as both parties confirmed. In such cases, legal or emotional pitfalls may arise if the separation is not clearly carried out or documented. The legal position of the departing spouse remains relevant, particularly regarding the rental agreement and the question of whether the residence truly was relinquished.
For the wife, her husband’s move marked the start of the separation. She finally communicated her intention to separate to her husband in a conversation in July 2023. In the fall of 2023, she filed for divorce, considering the separation year to have been completed following her husband’s move out the year before.
Separation of Meals and Sleeping Arrangements
Significance for Living Apart During the Separation Year
Separation of meals and sleeping arrangements is a central criterion for living apart during the separation year under German divorce law. Various aspects must be considered, especially the legal and practical consequences, such as child custody, maintenance, and divorce agreements. It means that spouses no longer live together as a married couple but distinctly separate their areas of life. This applies to eating, sleeping, and leisure activities. For the family court, separation of meals and sleeping arrangements is an important indicator that the marital relationship has actually ended and that the separation year is ongoing within the meaning of the law.
Living Apart Despite the Shared Apartment
Especially in Germany, it is common for couples to continue living in the same apartment after separating – for example, due to financial reasons or for the benefit of the children. In such cases, it is particularly important for the spouses to clearly divide the household. This may mean that each spouse has their own bedroom, keeps a separate budget, and no longer shares meals. The use of common rooms such as the kitchen or bathroom should also take place at separate times, in order to make living apart clear to outsiders and the family court.
Impact on Separation Year and Maintenance
The separation of table and bed is not only relevant for the course of the year of separation, but can also affect the entitlement to spousal support. It is especially important to observe the statutory period for the year of separation, since this deadline is also crucial for asserting claims to maintenance. Anyone who can prove that they are actually living apart may, under certain circumstances, be able to claim maintenance. The family court examines precisely during the divorce proceedings whether the requirements for the year of separation are met—particularly in cases where the spouses continue to live under one roof.
In practice, it is advisable to document the division of the home and the ending of joint living arrangements as precisely as possible. This can help to avoid misunderstandings and later disputes. If there are uncertainties or questions about the separation of table and bed, the year of separation, or other aspects of family law, it is advisable to seek legal advice at an early stage. A specialist family law attorney can help to clarify one’s rights and obligations in connection with the divorce and spousal maintenance and to organize the year of separation in a legally secure way.
Divorce petition rejected
Just as the competent family court did, the Higher Regional Court (OLG) Karlsruhe also rejected the divorce petition. It did not consider the year of separation to have been fulfilled, because the applicant could not sufficiently prove that a legally relevant separation had existed for at least one year. While there was physical separation, there was a lack of a clear and unmistakable declaration to the husband of the intention to separate permanently. The claimed notification was not enough to establish a clear break in the marital relationship.
The court first clarified that according to § 1565 (1) BGB, a marriage can be divorced if it has failed. The failure is presumed under § 1566 BGB if the spouses have been living separately for at least one year and both want a divorce or one rejects the restoration of marital cohabitation.
Subjective intention to separate as a prerequisite for the year of separation
When does separation exist in the sense of § 1567 BGB?
Under § 1567 BGB, ‘separation’ is understood to mean that there is no longer a domestic community between the spouses and that at least one partner no longer wants to restore it. This subjective intention to permanently end the marriage was, according to the OLG, not sufficiently clear in the present case.
In its reasoning, the court stated that the husband’s move in August 2022 was for family and professional reasons and not made with the intention to end the marriage. Therefore, this step was not initially considered a legal separation. The year of separation only begins when a spouse expressly declares that he or she does not wish to continue the marital relationship. This declaration must also be received by the other spouse clearly and unequivocally. Vague hints, arguments, or emotional distance are not sufficient.
No clear declaration of separation—year of separation did not validly begin
It was problematic that the wife could not clearly demonstrate the alleged intention to separate in July 2023. In the court’s view, it was more a general discussion about the difficult relationship, not a clear statement of separation. The subsequent overnight stay together also argued against the intention to permanently end the marriage being fixed at that time. Later contacts, such as the husband’s visit in November 2023, further underlined that there was no consistent separation, according to the OLG Karlsruhe. As a result, there was no clear start of the year of separation so the divorce petition was filed too early.
Children and custody during the year of separation
Parental responsibility and stability for the child
The year of separation is not only a major challenge for the spouses, but especially for the children. While the parents organize their separation and arrange the procedure for the year of separation, the children must come to terms with their new life situation. In this sensitive phase, it is particularly important that both parents continue to assume responsibility for the child and provide stability.
In German divorce law, joint custody generally continues during the year of separation. This means that both parents must continue to jointly make important decisions regarding the child—for example, regarding school, medical treatments, or the child’s place of residence. Only in exceptional cases, if the child’s welfare is endangered or a parent grossly neglects duties, can the family court, upon request, transfer custody to one parent alone.
Contact rights and child support during the year of separation
Contact with the child should also be arranged by mutual agreement as far as possible during the separation period. The child has a right to regular contact with both parents, regardless of with whom the child primarily lives. Solutions agreed upon by the parents are not only in the child’s interest, but also help avoid lengthy and burdensome disputes in family court. Should conflicts nevertheless arise, the court can issue a custody arrangement that prioritizes the child’s welfare.
In addition to custody, child support during the separation year also plays an important role. The parent with whom the child does not live is generally obliged to pay support. The amount of child support is determined by the so-called Düsseldorf Table and takes into account the income of the parent required to pay support.
Importance of Parental Behavior in the Divorce Process
Parents should be aware that their behavior during the separation year can also impact the later divorce process and court decisions. Those who prioritize the child’s well-being, work cooperatively with the ex-partner, and avoid conflicts create the best conditions for an amicable divorce and a stable future for the child. In case of uncertainty regarding custody, visitation, or support, it is advisable to seek legal advice early in order to clarify the rights and obligations in connection with separation and divorce.
Documenting the Beginning of the Separation Year
This decision shows that separation in a legal sense means more than simply moving out of the marital home. Anyone wishing to divorce must clearly communicate this intention to their partner and, if possible, document it. Otherwise, the start of the separation year may be delayed, which can also have consequences for the division of assets during the divorce.
This article provides an overview of the most important aspects of the separation year.
MTR Legal Attorneys advises on separation and divorce as well as other issues of family law.
Feel free to contact us!
