Year of Separation and Imprisonment: Key Aspects of Recognized Separation in Family Law
Family law sets out specific requirements under which the so-called year of separation is recognized as a decisive phase for divorce. Central to this is the question of how such a year of separation is evaluated when one spouse is serving a prison sentence. Case law clarifies that mere factual physical separation is not sufficient. Rather, the criteria relevant for assuming a separation within the meaning of Section 1567 of the German Civil Code (BGB) must be observed.
Existence of Intent to Separate – Assessment on a Case-by-Case Basis
Clarity of the Wish to Separate
According to a recent decision by the Higher Regional Court of Zweibrücken (judgment of January 6, 2022, ref. 2 UF 159/20), a separation between spouses, where one partner is serving a prison sentence, is not established solely due to the involuntary physical distance. It is crucial that the wish to separate is clearly and understandably manifested by at least one spouse to the other. This corresponds to established case law, which states that the intention to separate from bed and board cannot be presumed, but must be clearly expressed.
Objective and Subjective Prerequisites
The law requires that the marital cohabitation has been terminated and at least one spouse considers the marriage to have failed. While the dissolution of the marital cohabitation may occur automatically due to the imprisonment of a spouse, an explicit indication of the intent to separate is still necessary. Without such a clear declaration or provable sign—such as an appropriate written notification, clear behavior, or other communication—the legally relevant point in time for separation under family law remains unclear.
Effects on Divorce Proceedings
Commencement and Proof of the Year of Separation
The year of separation relevant under family law serves to protect the institution of marriage and aims to ensure that the marital partnership is actually and permanently dissolved. In the case of a separation brought about by criminal imprisonment, proving the commencement of the year of separation may be challenging. Without a recognizable decision to separate, the year of separation does not legally begin automatically with the start of the imprisonment, but only at the point when the other spouse reliably learns of the intent to separate.
Problematic Situations in the Context of Imprisonment
The situation of imprisonment presents not only legal but also practical challenges in family law. Declarations of separation are often communicated via correspondence, telephone calls, or visits. For evidentiary purposes, it is advisable to keep in mind the requirements based on Section 1567 BGB for documenting the intent to separate. It should also be noted that continued contact after the wish to separate has become known, and a ‘revival’ of the marriage through corresponding conduct, can complicate the assumption of a full year of separation.
Case Law and Practical Relevance
The decision by the OLG Zweibrücken emphasizes that a physical separation caused by criminal law does not automatically constitute a separation in the sense of family law. To prove the dissolution of marital cohabitation and the intent to separate, a clear and provable declaration to the other spouse is essential. The principles of this case law are applied in numerous family court proceedings and are of significant importance, especially in view of the formal requirements for divorce.
Significance for Practice and Further Information
For affected clients—whether entrepreneurs, investors, or high-net-worth individuals—the careful examination of the prerequisites for the year of separation in the context of imprisonment is often linked to additional complex questions, especially when assets, corporate shareholdings, or tax-relevant matters are involved.
If there are any uncertainties in connection with the year of separation or other aspects of family and divorce law, it is advisable to seek expert legal advice. The lawyers at MTR Legal competently support clients nationwide and internationally in asserting and shaping their legal interests.
