Separation time
July 30, 2009 | 25,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear lawyer,
I have been married for 9 years, without children, and I now want to get a divorce. We still live together in my house, which belongs solely to me, but we are separated. We have a notarized marriage contract in which the equalization of gains and mutual pension equalization are excluded in case of divorce. Furthermore, a mutual waiver of alimony and exclusion of other compensation claims have been agreed upon.
My problem is that my wife does not want to move out of my house. She has been unemployed for a year, and according to the law, I cannot force her to leave the house. She also does not want to recognize a separation period, and I cannot file for divorce unless I have been separated for at least 9 months (at least that's what I was told). How can I get out of this mess cheaply? I do not want to and cannot move out of my own house, even if it is only temporary, as I cannot afford to rent another apartment.
If, however, this is the only option and the divorce goes through, can I then demand repayment of the costs for the temporary apartment from her, since I would be forced to move out of my house?
Sincerely,
Dear inquirer,
Thank you for your inquiry!
I would like to address your question considering the information you provided:
Firstly, it is correct that a so-called separation year must be completed before filing for divorce. This means that the spouses must live apart according to the law for a year.
Based on the information you provided, you cannot claim reimbursement for the costs of renting an additional apartment.
This is simply because you can go through the separation year in the current situation and your wife cannot block the divorce.
The principle is that a marriage can be dissolved under § 1565 of the German Civil Code when the marriage has failed.
§ 1566 of the German Civil Code establishes a presumption of marriage failure if the spouses have been living separately for a year.
Furthermore, § 1567 (1) of the German Civil Code states that spouses are considered to be living separately when there is no longer a domestic partnership between them. § 1567 (1) (2) of the German Civil Code specifies that a domestic partnership also ceases to exist if the spouses live separately within the marital home, particularly with regard to "board and bed," and if the separation is outwardly visible, especially to third parties (e.g. friends and relatives).
This applies to your situation. Therefore, your wife cannot prevent the divorce by refusing to move out.
I hope this provides you with some initial legal guidance and wish you success and all the best!
I would like to emphasize the following:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive examination of the circumstances. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful. Feel free to contact me via email or the follow-up option.
Have a pleasant Thursday evening!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
