How long does the separation last before a divorce
Process and duration of a divorce
Divorce is a debilitating and stressful affair. It can be done by mutual agreement, but often ends in a dispute. The same applies to the dissolution of a civil partnership, which hardly deviates from a divorce.
- Before the divorce: The year of separation
- Divorce process
- International divorce process
- Duration of a divorce
- Frequently asked questions
1. Before the divorce: The year of separation
Typically, the spouses want to end the divorce as soon as possible. For them is marriage subjective already failed at that moment.
However, with a few exceptions, an immediate divorce is not possible (more on this later). The marriage will only be divorced by the family court if one spouse applies for divorce, and so does she legally is deemed to have failed (§ 1565 BGB). In principle, this is the case when the cohabitation of the spouses no longer exists.
That is the sign of the final end of the cohabitation Live separately of the couple. The spouses must have lived separately not only for the moment, but also for a certain period of time.
1.1 Duration of the year of separation
The necessary period of separation depends on whether both spouses want a divorce or only one spouse:
- To a year of separation the marriage is considered to have failed by the judge if both Spouses apply for divorce or one spouse applies for divorce and the other agrees.
- If, on the other hand, a spouse does not want a divorce, the judge usually sees an opportunity for reconciliation and does not divorce the marriage yet. In this case, the family court always looks first three years separation the marriage as a final failure.
However, in these cases the marriage may have finally failed beforehand. The spouse who wants the divorce then has to prove this. He must demonstrate that it is clear earlier than after three years of separation that reconciliation is no longer an option. The spatial separation of the spouses of at least one year is then considered an indication.
The separation year should give the couple time to rethink their marriage and maybe find each other again.
The couple live clearly separated when one spouse has moved out. However, living apart does not necessarily mean that one spouse has to move out of the shared home. The spouses can continue to live in a house or apartment. However, you have to divide the rooms among yourself and clearly no longer form a marriage partnership (“separation of table and bed”).
Example: Husband M and Wife F see their marriage as a failure. M should sleep in the winter garden from now on. The remaining rooms are shared by both. F continues to cook and wash for the whole family and keep the house clean. M does manual work in the house and garden. After a year, they apply for divorce.
In the example, M and F have divided the house among themselves and therefore live separately in the house. A shared use of the kitchen and bathroom does not harm this. However, the couple continue to do the household together. This suggests a continued marriage. The year therefore does not count as a separation year. Divorce is not possible.
1.2 Elimination of the separation year in the case of hardship
In individual cases, the year of separation can be unbearable for one or both spouses. The judge can then carry out an immediate hardship decision ("lightning decision") earlier. The year of separation is then waived.
A quick divorce can only take place if the continued existence of the marriage is unbearable for one of the spouses due to reasons that are inherent in the person of the other spouse. Such reasons can be, for example, bodily harm, insults or extramarital relationships.
Example: Wife F and husband M want to get a divorce. F and M pull apart. A short time later, F becomes pregnant by another man. M now asserts that under these circumstances he cannot and does not want to continue the marriage under any circumstances.
The OLG Frankfurt am Main (1 WF 89/05) gave him the right and allowed a hardship decision. The husband cannot be expected to continue the marriage if the wife is pregnant by another man.
The court is solely responsible for recognizing the case of hardship. The judge considers all the circumstances of the individual case and weighs them up on his own responsibility. Investigating a hardship case is more time-consuming and difficult for the court than checking the year of separation, which is why judges are sometimes reluctant to issue a hardship decision.
2. Divorce process
2.1 Filing for divorce
While the marriage takes place in front of the registry office, the marriage can only be divorced by the family court. A purely private agreement between the spouses on the divorce is not possible.
The divorce proceedings therefore begin when the application for divorce is submitted to the family court. The application can be made at the end of the year of separation at the earliest. If the application is submitted earlier, it will in most cases be rejected for a fee. Of course, something else applies to the lightning divorce.
It does not matter which of the spouses makes the application ("applicant"), but the applicant can decide on the further progress of the procedure. For example, he can withdraw the application.
2.2 Pay court fees
Before the court takes action, the applicant must pay the court costs, which can be calculated based on the income of the spouses. First of all, the applicant alone has to bear the court costs. After the divorce, the other spouse has to reimburse him half. If the applicant has a low income, he may receive legal aid or legal aid.
2.3 The court sends the application to the spouse
After the court costs have been paid, the court sends the divorce petition (“ex officio”) to the other spouse. Even if the service is ex officio, the applicant must provide the postal address of the other spouse. This can only be waived if the spouse can no longer be found. The court then serves the application “publicly” and the proceedings continue without the other spouse.
The other spouse can now reject the application, agree to it or, with the help of their lawyer, file their own application for divorce. Filing your own application for divorce is advantageous, as the applicant can then no longer decide on the procedure alone.
2.4 Complete the questionnaire on the pension adjustment
The court sends both spouses a questionnaire on pension adjustment. This is used to calculate the spouses' pension entitlements. The pension equalization must generally be carried out and can only be dispensed with in the following cases:
- The spouses decided in advance by means of a notarial marriage contract to exclude the pension adjustment.
- The marriage lasted less than three years (here the pension adjustment can be applied for voluntarily).
- The pension equalization would be grossly unfair (e.g. because the beneficiary never paid maintenance during the marriage, although he was obliged to do so).
- Both spouses are represented by a lawyer and agree on the elimination of the pension adjustment.
The absence of the pension adjustment leads to a substantial acceleration of the process. As a rule, it is then about three months faster.
2.5 Appointment for divorce in court
As soon as the calculations of the pension insurance are available, the family court sets a divorce date. Both spouses must be present here. The judge only asks a few questions about the separation and income of the spouses. The judge will then divorce the marriage by means of a divorce decree.
If the spouses waive an appeal against the decision (through a lawyer!), The divorce is now effective. Otherwise, it will take effect after one month, unless an appeal is lodged (the next higher court would deal with the divorce again).
2.6 What still needs to be arranged after the divorce?
As part of the divorce proceedings, the spouses can request that the court also regulate the consequences of the post-marital situation (“follow-up matters”). Here, too, the spouses can reach an out-of-court agreement and thus speed up the procedure.
The following items include:
- Child support and post-marital support
- Childhood matters (custody and access rights for common children)
- Property law matters (property of the spouses)
- Household items (division of household items such as furniture and kitchen appliances)
3. Process of an international divorce
In the case of an international divorce, the question arises whether the marriage will be divorced under German or foreign law. The determination of the applicable law is very important, as foreign divorce law sometimes differs significantly from German divorce law.
An international divorce always occurs when
- One or both spouses live or abroad
- One or both spouses do not have German citizenship.
However, it is irrelevant whether the marriage was concluded under German or foreign law.
First of all, in the event of an international divorce, the spouses can themselves decide on the applicable law by entering into a marriage contract. If the spouses have not reached an agreement, the applicable divorce law is determined by the so-called Rome III regulation.
The International divorce process is largely determined by the applicable law. If the marriage is to be divorced according to German law, there are no differences to a “normal” divorce in terms of the process. In individual cases, however, information must be obtained from abroad, which, depending on the country, can delay the procedure.
The question of which law applies is essential. The consequences, sequence, and procedure of the divorce can vary significantly depending on the situation. In the case of an international divorce in particular, it is therefore worth visiting an attorney specializing in family law at an early stage in order to at least clarify this important question. All further considerations can be based on this.
In an international context, the recognition of divorce should also be considered. A Divorce throughGerman dishes is recognized in all EU countries except Denmark. In other countries, however, it may be necessary to go to the local authorities or courts in order to have a German divorce recognized. Sometimes there are bilateral recognition agreements, sometimes the divorce has to be repeated according to national law.
A Divorce by foreign courts must first be recognized in Germany. From other EU countries (except Denmark) this is possible without a formal procedure. In other cases, recognition is given by the state administration of justice. However, this procedure is in principle unnecessary even if both spouses belong to the state of the court that made the divorce. One then speaks of a so-called Home state decision.
4. Duration of the divorce
The German divorce proceedings can extend for a total of 6-12 months from the submission of the application for divorce. If, in exceptional cases, the pension adjustment can be waived, a divorce is possible within 3-4 months. However, depending on how busy the court is, the process can take considerably longer.
The duration of the proceedings also has a significant influence on whether the spouses agree on most issues relating to the divorce (consensualdivorce) or not (contentious divorce). The procedure is basically the same. The greater the disagreement between the spouses on questions of profit sharing, maintenance, household chores, childcare, marital home, etc., the greater the need for clarification between them. This takes time, both out of court and in the preparation of the court hearing through statements by lawyers.
In detail, the following duration is to be expected for the respective procedural steps:
- After the divorce petition is filed, the court determines the procedural value. It then requests payment of the Advance payment of court costs This happens approx two weeks after filing the application for divorce.
- Should you Legal aid have applied for, a decision will be made on this application together with your application for divorce. This usually does not result in delays.
- After paying the court costs will usually after a few days the divorce petition to the spouse delivered. He then has three weeks to comment.
- After the questionnaire for the Pension equalization is filled out, the information is obtained from the pension providers. The German pension insurance needs about three months. Experience has shown that private company pension providers are faster.
- After receiving the information, the judge usually calculates the pension adjustment. He informs the parties of this calculation in the appointment summons.
- Between charge and the court date must be at least one month. This is intended to give the parties time to submit follow-up applications (maintenance, profit compensation, etc.). This will be decided together in the divorce appointment.
How much time there is between the summons and the court date depends largely on the workload of the respective judge. Is very rough with two months to be expected.
- The duration of the procedure can also be extended considerably if it is extensive Follow-up applications be asked. For this reason, disputed divorces tend to take longer.
- The Divorce date in court is a brief matter and usually takes no longer than 20 minutes. It can of course be different in the case of a controversial divorce.
- A divorce is only possible if both spouses want a divorce and have been living separately for a year or at least one spouse wants a divorce and the spouses have been separated for three years.
- The year of separation can only be waived in rare cases of hardship (“lightning divorce”).
- The divorce proceedings begin with the application for divorce to the local court and payment of the court costs.
- The application is served on the other spouse by the court.
- A pension adjustment is then carried out, which can only be waived in exceptional cases.
- Finally, a court date is set in which the judge divides the spouses.
- The procedure takes an average of 3-12 months. Most of the time is normally taken up by the pension adjustment.
7. Frequently asked questions
After the end of the year of separation, the application for divorce can be submitted to the family court. The applicant must then pay the advance court costs. The court then serves the application for divorce on the spouse. If necessary, the questionnaire on the pension adjustment will also be sent at the same time. A divorce date is then set, in which the divorce is determined by divorce decree.
The length of the divorce proceedings depends on how amicable or contentious the marriage is. A marriage can be divorced within just three months after the end of the year of separation if no pension adjustment has to be carried out, e.g. in the case of a short marriage of less than three years. In the event of a divorce with pension adjustment, you can expect up to nine months. A contentious divorce can even last for years.
For divorce there is a lawyer compulsory in Germany: To get a divorce you therefore need a lawyer who will submit the divorce petition for you to the competent court. So your first step towards divorce is choosing a good divorce lawyer.
You can file for divorce once you and your spouse have been separated for a year and you both consent to the divorce. A divorce without a year of separation is only possible in cases of hardship. If a spouse refuses to consent to the divorce, a separation period of three years must be observed. Exception: a judge determines that the marriage has already broken down.
The year of separation begins when a spouse moves out of the shared apartment. So there can no longer be a domestic community. It can also be sufficient if each partner uses a separate, separate area of the apartment and lives are led separately.
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Franziska Hasselbach is a specialist lawyer for family law and has successfully accompanied numerous divorce proceedings. In addition, she advises in Cologne, Bonn and Frankfurt am Main on matters relating to maintenance, custody and access law as well as marriage contracts and separation agreements.
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