Divorce and the year of separation under § 1565 BGB
A marriage is dissolved by divorce where it has broken down (§ 1565(1) BGB). After a year of separation, breakdown is presumed, provided both spouses petition for divorce or the respondent consents (§ 1566(1) BGB). Without that consent, the presumption only applies after three years of separation (§ 1566(2) BGB).
Two separate homes are not required for this. Spouses are living apart as soon as no domestic community exists any longer and one spouse clearly does not want to restore it, even within the marital home (§ 1567(1) BGB).
Before the year of separation has elapsed, divorce is possible where continuing the marriage would constitute unreasonable hardship for the petitioner for reasons relating to the other spouse (§ 1565(2) BGB).
The court hears and decides the divorce together with ancillary matters in consolidated proceedings (§ 137(1) FamFG). Ancillary matters are the pension rights adjustment, maintenance, the marital home and household goods, and matrimonial property, where a spouse brings them at the latest two weeks before the first-instance oral hearing (§ 137(2) FamFG). We plan this deadline together with you.
Child maintenance, separation maintenance and spousal maintenance
A minor child can demand maintenance from the parent with whom it does not live in one household, expressed as a percentage of the minimum maintenance (§ 1612a(1) BGB). The bands are 87 per cent up to the child’s sixth birthday, 100 per cent up to the twelfth and 117 per cent from the 13th year (§ 1612a(1) BGB).
The Düsseldorf Table, in the version applicable from 1 January 2026, assigns amounts to these bands by income group. Spouses living apart owe each other the maintenance appropriate to their living, earning and financial circumstances (§ 1361(1) BGB).
After divorce, it is each spouse’s own responsibility to provide for their own maintenance (§ 1569 BGB). Maintenance from a divorced spouse is available only where one of the statutory grounds is met. We calculate the figures and enforce the result at Augsburg Family Court.
Custody and contact after separation
When parents separate, joint parental custody continues until one parent applies for sole custody and the Family Court transfers it (§ 1671(1) BGB). The application must be granted where the other parent consents; from the completed 14th year the child can object.
Without consent, the court transfers sole custody only where that best serves the child’s welfare (§ 1671(1) no. 2 BGB). We represent you in custody and contact proceedings.
The right to determine residence and the shared residence model
The right to determine residence is part of parental custody and can be transferred to one parent alone under § 1671(1) BGB. It determines where the child has its centre of life.
A shared residence model, meaning care split approximately equally between both parents, is ordered by the Family Court as part of a contact arrangement under § 1684 BGB. The standard is whichever decision, taking into account the actual circumstances and the legitimate interests of those involved, best serves the child’s welfare (§ 1697a BGB). We assess which care model works in your case.
The right to contact and supervised contact
Every child has a right to contact with both parents (§ 1684(1) BGB). Conversely, every parent has a duty of contact. The Family Court may restrict or exclude contact only to the extent required for the child’s welfare (§ 1684(4) sentence 1 BGB).
Excluding contact for a longer period or permanently requires that the child’s welfare would otherwise be endangered (§ 1684(4) sentence 2 BGB). Supervised contact is a milder measure. The court can order that contact only take place in the presence of a third party willing to assist; that third party can also be a youth welfare provider or an association (§ 1684(4) sentences 3 and 4 BGB).
Equalisation of accrued gains, prenuptial agreements and protection from violence
Besides divorce, maintenance and custody, in Augsburg we handle the financial consequences of the marriage and protection from domestic violence. Both proceed through separate applications to the Family Court, with their own reference dates and their own deadlines. We file these applications for you.
Calculating the equalisation of accrued gains and demanding disclosure
Where one spouse’s accrued gain exceeds the other’s, the other spouse is entitled to half the surplus as an equalisation claim (§ 1378(1) BGB). For calculating the gain on divorce, the date on which the divorce petition becomes pending is decisive (§ 1384 BGB).
Each spouse can demand disclosure from the other of their assets at the point of separation as soon as the divorce has been petitioned (§ 1379(1) BGB). Such a claim already exists once the spouses are living apart (§ 1379(2) BGB). We calculate the equalisation claim and enforce the disclosure.
Protection from violence: protection orders and allocation of the home
The Family Court can prohibit the perpetrator from entering the injured person’s home, approaching them, visiting their usual whereabouts or making contact (§ 1(1) GewSchG). Anyone who breaches an enforceable order faces up to two years’ imprisonment or a fine (§ 4(1) no. 1 GewSchG).
Where the couple had a shared household intended to be permanent, the injured person can demand sole use of the home (§ 2(1) GewSchG). Where it is owned by the perpetrator, the court limits the transfer to a maximum of six months and can extend it by up to a further six months where no other home could be found on reasonable terms (§ 2(2) GewSchG).
Where there is an urgent need, the order is issued provisionally as an interim order (§ 49(1) FamFG). We file the application.
Further information
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This information does not constitute legal advice in an individual case.
