Start of the Separation Year
Before a marriage can be dissolved through divorce, the spouses must first undergo a separation year. During this period, the couple must no longer maintain a shared household. A common point of contention is determining the exact date when the separation was factually initiated and the separation year began. Moving out of the marital home is not necessarily a prerequisite for this separation.
If a couple intends to divorce, they typically need to complete the separation year. Exceptions to this requirement are rare. If the family court determines after the separation year that the marriage is irretrievably broken, the divorce can proceed. However, disputes often arise regarding the exact date the separation was effectively implemented, according to the law firm MTR Legal Rechtsanwälte, which also provides counsel in family law.
Moving Out of the Marital Home Not a Requirement for Separation
Moving out of the shared marital home can mark the start of the separation. The advantage of this approach is that the separation date can be easily documented through registration at the local registration office with the new address. However, separation often occurs prior to moving out, and separate living arrangements are not mandatory for the separation year to begin—at least not initially. This has also been confirmed by the Higher Regional Court (OLG) Frankfurt in its decision dated March 28, 2024 (Case No.: 1 UF 160/23).
The key requirement for the separation year is that the couple no longer maintains a shared household. This means they must implement a clear physical and financial separation. In practice, this entails each spouse having their own room and bed. Sharing a bedroom during the separation year is strictly prohibited. In addition to separate sleeping arrangements, the couple must also implement financial independence, meaning each spouse must manage their own household.
Separation Year Begins with Physical and Financial Separation
The start of the physical and financial separation is considered the beginning of the separation year. If the couple continues to share a residence temporarily, the separation should be documented. This can be done, for instance, through a written notice of separation addressed to the other partner. In the notice, one partner communicates their intention to separate and the date on which the separation is initiated. Ideally, the recipient acknowledges receipt of the notice with a date and signature.
A separation agreement can also be helpful. Such an agreement can outline key arrangements, including those related to property division, spousal or child support, custody arrangements, and the continued use of the marital home, provided no legal objections exist. If the couple agrees on such arrangements, this can simplify the divorce process later on.
Entitlement to Separation Maintenance
Separation does not constitute divorce but does entail legal consequences, such as the entitlement to separation maintenance. Unlike other agreements, separation maintenance is not negotiable. Generally, the spouse with the lower income is entitled to separation maintenance, which is often half the couple’s combined monthly income. The date of separation is therefore also relevant for determining entitlement to separation maintenance.
The separation date also plays a crucial role in subsequent financial settlements. For instance, with the divorce petition, mutual disclosure obligations concerning each spouse’s assets at the time of separation come into effect. These asset disclosures are critical for calculating the division of accrued gains. The purpose of this disclosure is to prevent asset manipulation.
End of the Shared Household
The Higher Regional Court (OLG) Frankfurt clarified that determining the separation date depends on when the couple objectively ceased maintaining a shared household. It emphasized that one spouse moving out of the shared residence is not necessarily required for this determination.
MTR Legal Rechtsanwälte advises private clients on matters of separation and divorce, as well as other issues related to family law.
Feel free to contact us.
