The termination of a marriage is finalised through a divorce decree. The German Civil Code (BGB) governs divorce in the provisions §§ 1564 BGB. A marriage is considered “failed” when marital cohabitation is nonexistent.
For this to be the case, the former spouses must dissolve the conjugal partnership in any regard. Commonly, one of the spouses moves out. However, if this is not possible, a spatial separation must be installed in the shared home because of the couple’s children.
It is decisive that one household turns into two (see BGH, judgement f. 14.6.1978 – IV ZR 164/77 (Düsseldorf)). For example, this implies that no household supply tasks may be conducted for the other spouse, such as grocery shopping, laundry or cooking. Furthermore, arrangements must be made because of regulating the use of shared rooms, such as the kitchen or the bathroom. Preferably, this should be documented in writing. Our German divorce lawyers can assist you with this.
Exact Conditions for Divorce: a Failed Marriage
It is crucial that, generally, German law only provides for the possibility of divorce if the marriage has failed (§1565 para.1 BGB). This failure is evident if there is no marital partnership anymore, and it cannot be expected that this partnership can be restored (§1565 para.2 BGB).
First and foremost, this applies if the couple does not live together anymore (§1567 para.1 BGB). This way, a failed marriage can be proven, especially if one spouse wishes to divorce while the other wishes to hold on to the marriage.
Please note that in case of a dispute, a marriage is only incontrovertibly considered failed if the (former) spouses have lived separately for three years (§1566 para.1 BGB).
However, this consideration can be disproved in particular cases. Even if the other spouse is contesting, it can be possible to divorce earlier than three years. This requires a detailed presentation in front of the court by an experienced lawyer in German divorce law.
Yet, moving out must be well thought through, as this act can trigger several consequences. Mainly where children are involved, moving out without them can later impact the right to determine the children’s residence or even the right of custody. Therefore, this step should be carefully considered.
Besides, the question of which the spouse may continue to use the formerly shared home arises. If one spouse leaves and does not show a serious intention to return, it will be irrevocably assumed that they surrender their right of use to the other spouse. Thus, legal advice from German divorce lawyers should be sought before leaving the shared home.