What awaits you in the year of separation: All information at a glance
The year of separation is the legal requirement for the divorce of a marriage. But what regulations are there for this time? Find out here what changes occur in your private life in the year of separation, which financial peculiarities you should consider and find out whether the separation year can be shortened.
What is the purpose of the separation year?
The institution of marriage still has a special status in German law. Divorces are therefore subject to strict guidelines and can only be enforced once the breakdown of the marriage has been proven. It does not matter who is responsible for the failure of the marriage. The so-called “principle of guilt” was replaced by the principle of disruption in 1976. This is intended to prevent premature and ill-considered divorces and therefore provides for a one-year “probationary period”, the so-called separation year, in which the spouses should be clear about whether they really want the divorce or want to remain in the marriage. Only at the end of this year of separation does the family court assume the final dissolution of the cohabitation and the marriage can be dissolved.
Good to know: The year of separation is not automatically the beginning of the divorce, but merely the prerequisite for being able to file for divorce.
In cases of particular hardship, for example in the case of extraordinary violence by the spouse vis-à-vis the partner wishing to divorce or any existing children, a divorce can also be carried out without a previous year of separation. However, such a hardship divorce is always a case-by-case decision.
What should be done in the year of separation
Many divorce seekers who rule out reuniting with their partner see the year of separation merely as a hurdle before divorce. But it can also be used meaningfully to finally detach oneself from the spouse: not only emotionally, but also in all other areas of daily life. The following points are worth considering in the year of separation:
- Clarify follow-up matters: In order to speed up the actual divorce after the year of separation, it is practical to reach an amicable agreement now on matters such asalimony, custody and property matters. In order to ensure that the agreements are later kept by both parties and are also legally binding, they should be notarized. Only on the division of the household contents is a binding agreement without notarial certification possible.
- Submit an account clarification request: In order tocalculate the pension equalisationin the event of divorce, an account clarification by the pension insurance institution is necessary. By applying early, there are no waiting periods shortly before the divorce date, which speeds up thedivorce proceedings.
- Check insurance status: If you are insured together with your spouse, for example in health insurance, you should think about initiating a new insurance relationship at an early stage. Family insurance ends three months after the divorce becomes final.
- Documenting financial circumstances: Although the ex-partner must provide information about the financial circumstances at the request of the opposing lawyer in the divorce, it often happens in practice that only parts of the documents are disclosed. Depending on the trustworthiness of the spouse, it is therefore advisable to document documents, such as pay slips, insurance contracts or papers for retirement provision as well as accounts, custody accounts and other investments, in advance so that no information is withheld later.
When does the separation year begin?
In principle, the year of separation begins at the time when one spouse informs the other that he or she wishes to separate. The desire to separate should therefore be communicated openly so that there are no misunderstandings later. Important: A separation only holds up in court if it is lived. You will learn more about this in the further course of the article.
An application to the court to initiate the separation year is not necessary, but it is advisable to record the separation date in writing, as this must be stated later in thedivorce application. Documentation of the time at which the separation year began is particularly important if the separation is not consensual. In order to delay the divorce, it may happen that the spouse who does not wish to divorce claims that there was no separation or indicates a later date. In such cases, the partner who claims to be separated must prove the existence and beginning of the separation. If one of the two partners moves out of the marital home, such proof is usually not a problem. It is also a good idea to draw up a kind of separation agreement in which the corresponding date is noted and which is signed by both partners. A lawyer’s letter to the partner at the beginning of the separation period can also serve as evidence. If all this is not feasible, the time of separation may later be confirmed by witnesses from the circle of acquaintances or relatives.
Rules of conduct in the year of separation
In order for the year of separation to stand up in court, certain rules of conduct must be observed. Because before the family court, a couple is only considered to be separated if they no longer form a domestic community with each other. As a rule, this is referred to as the “separation of table and bed”.
In many separations, this state is already achieved by one of the spouses moving out, which automatically dissolves the domestic community. However, according to §1567 of the German Civil Code (BGB), an excerpt, and thus a domestic separation, is not absolutely necessary. If this were the case, divorce might not be achievable for financially disadvantaged couples.
According to the law, therefore, a “separation under one roof” is possible, in which both spouses remain in the marital home. However, the separation situation must then be clearly regulated and both partners must operate separately. This means that no mutual services, such as cooking or laundry, may no longer be provided. Each of the spouses must clarify all his or her own concerns. Joint activities and shared rooms are also only permitted to a limited extent:
- The rooms within the apartment must be separated so that everyone has their own area. Kitchen and bathroom are usually still shared. Here, however, it makes sense to draw up a timetable for use so that it is easier to comply with household separation.
- Occasional meals or activities together are fine, as long as they are related to the exercise of the right of access of any common children. The same applies to visits if one of the spouses has moved out.
How strictly a couple adheres to these requirements is ultimately a private matter. As a rule, the family court does not control the actual separation situation, but relies on the statements of the spouses to assess whether the requirements were complied with in the year of separation. As long as they match, no problems should occur. However, an “unclean” separation could become problematic if one of the partners does not or no longer wants a separation.
A separation within the marital home is actually never provable if one of the spouses claims that the separation did not take place. The burden of proof is on the person who wants a divorce. It follows that it is the separation that must be proven, not living together. Even watching TV together in the evening, shopping for the other, meals together or the like are enough to deny a separation.
Attempt at reconciliation in the year of separation
Attempts at reconciliation by the spouses are quite permissible in the year of separation, because after all, the legal regulation should give the partners the opportunity to reconsider their decision to divorce. A resumption of the relationship therefore does not automatically hinder the end of the year of separation. Only if the reconciliation attempt lasts longer than three months, the court assumes that the partners have found each other again and the separation year would have to be initiated from the beginning after a possible failure of the reconciliation.
Under certain circumstances, however, an attempt at reconciliation lasting less than three months can lead to the legal end of the separation year. If, for example, the reconciliation attempt is initiated shortly before the divorce date and the divorce application is subsequently withdrawn, the court automatically assumes that the reconciliation is final. Should the reconciliation fail afterwards, the year of separation begins all over again, even if the reconciliation was effectively short-lived. In such cases, it is therefore worth considering first requesting the suspension of the divorce proceedings until it is clear whether the reconciliation is really lasting.
Maintenance in the year of separation
From the date of separation, the economically disadvantaged spouse is entitled to so-called separation maintenance in accordance with the principle of marital solidarity. This financial maintenance claim up to divorce should be clarified quickly, as it is only paid if it is actively applied for and cannot be claimed retroactively.
The separation maintenance is usually calculated according to the 3/7 rule, i.e. 3/7 of the income of the higher earner relevant under maintenance law goes to the ex-partner. The maintenance-relevant income is calculated from the net income as well as any existing housing value benefits, interest income, income from renting and leasing, tax refunds and all other income. Before the calculation, existing burdens such as credit obligations, child support, certain insurances and up to 4% of the gross income for obligations in private pension provision are deducted.
Whether a judicial or extrajudicial settlement is found in matters of separation maintenance is left to the spouses. Either way, in order to assess the situation, the entire income situation must usually be disclosed. In the case of an out-of-court settlement, however, the spouses can also agree on deviating benefits. A complete waiver of separation maintenance is also possible, but only if it is not at the expense of the social security funds.
You can find much more information and detailed examples on this topic in our article “Separation maintenance – when do you get it?”.
In the case of joint children, joint custody usually remains in place even in the event of separation or divorce. However, the partner who does not live with the children is obliged to pay child support. Here, too, the claim exists from the day of separation, but must be actively asserted as with separation maintenance.
Tax assessment in the year of separation
Spouses who live together can choose whether they want to tax their income separately or jointly. In the year of separation, the choice between separate and joint taxation remains available.
If a joint tax assessment took place in the marriage, in which the higher-earning spouse was assessed in the more favourable tax class, it is possible in the year of separation for the economically disadvantaged partner to apply for a separate tax assessment with simultaneous change of tax class. The tax office will then carry out this new assessment in any case, the ex-partner has no claim to a lasting joint assessment against the tax office. This usually leads to considerable tax refunds on the applicant’s side.
Conversely, however, the other partner often results in high additional payments to the tax office. For this reason, the financially better off partner can sue that the spouses continue to be jointly taxed in the year of separation. According to a judgment of the Federal Court of Justice (BGH) from 2005, the spouse is obliged on the basis of the principle of marital solidarity to agree to the joint tax assessment in the year of separation.
Should this scenario occur, the spouse in a less tax-disadvantaged position is in turn entitled to compensation for the tax disadvantages resulting from the joint assessment. However, this is only possible for the months of the year that lie after the date of separation. In addition, in most cases, this claim is already covered by separation maintenance, provided that it is paid. This is the case because the separation maintenance is calculated on the basis of the joint assessment before the separation and the financially disadvantaged spouse already benefits from the tax advantages of the other partner in this way.
Can the separation year be shortened?
In principle, the year of separation cannot be shortened. It does not matter whether the divorce was decided amicably or not. Adultery is not grounds for a previous divorce. The duration of the marriage also has no effect on the length of the year of separation.
A divorce before the end of the year of separation is only possible if waiting until its end represents an “unreasonable hardship”. Such hardship must always be based on the person of the spouse, for example, because he or she commits serious violent or criminal offences against the divorced partner, his children or other relatives. However, these are always case-by-case decisions.
Whether one of the partners is in a new relationship is irrelevant for the duration of the separation year. However, a new partnership may result in changes in the receipt of separation maintenance. For the paying spouse, it is therefore worthwhile to have this checked.
In practice, the year of separation is often “unlawfully” shortened to speed up the divorce. The date of separation in the divorce application is simply dated earlier than it actually took place. However, such backdating is not advisable. As a rule, the family court is based exclusively on the information provided by the spouses if they agree. However, it becomes problematic if one of the partners decides to disclose the truth about the time of separation. Since the year of separation, from a purely legal point of view, is not just a mere formalism, a false statement has various financial consequences:
- Elimination of statutory inheritance law
- Reduction of the right to maintenance, as this depends, inter alia, on the duration of the marriage, which is determined on the basis of the date of separation
- Reduction of the period on which the pension equalisation is calculated
- Back payment of taxes
- Revocation of any legal aid that may have already been approved
- Fee-based rejection of the divorce petition
In addition, a breach of the procedural duty to tell the truth can also entail criminal consequences.
Some married couples state that even before the official start of the separation year, they only “lived side by side” for a long time and thus already fulfilled the conditions necessary for the recognition of the separation year at that time. However, such a time can only be claimed if there has already been a separation of table and bed.
What happens when the separation year is over?
In the case of an amicable divorce, the divorce can be filed about four weeks before the end of the year of separation. No further proof of the breakdown of the marriage is then necessary, since the court “irrefutably presumes that the marriage has failed” on the basis of the consent of both partners (BGB §1566 paragraph 1).
If the divorce has not been decided by mutual agreement, i.e. if one of the partners does not want to divorce at the end of the separation year, the necessary separation period can theoretically be extended to three years. In such a case, an immediate divorce is only possible if the partner wishing to divorce can convince the court that a resumption of the marriage is excluded, for example because a new, stable partnership exists.
In practice, however, this arrangement is usually handled differently. This means that if one of the partners wishes to be divorced, the divorce will be finalized at the end of the separation year even if the other partner objects.