Can I get a divorce from home
Divorce without a year of separation with the lightning divorce
- When can a marriage be divorced?
- Divorce after the year of separation
- Lightning divorce because of unreasonable hardship
- Reasons that are not enough for a lightning divorce
- What can justify a lightning divorce?
- Divorce under foreign law
- Annulment of the marriage
1. When can a marriage be divorced?
Whoever wants to get a divorce must first know: When can a marriage be divorced? According to the legal requirements (§ 1565 BGB) this is the case if the Marriage failed is. In any case, a marriage is considered to have failed if the conjugal cohabitation no longer exists and it cannot be expected that it will be re-established. After the Year of separation and if both spouses want a divorce, the marriage is presumed to have failed. But what do I do if I want to file for divorce before the end of this year? When is a so-called lightning divorce possible? The article highlights the possibilities of getting divorced quickly without a year of separation.
2. Divorce after the year of separation
Basically, the following applies: According to German law, anyone who wants to get a divorce must wait for the year of separation. The sometimes widespread view that you can “simply leave out” the year of separation does not apply! But how is it determined when the year of separation begins and what do you have to do with regard to a divorce? The year of separation (or its beginning) does not have to be submitted to or reported to a court or a public body. The only decisive factor is the later information in court as to when the person has been separated. Separation exists in any case when a spouse moves out, but can also exist in the shared apartment if all areas of life are separated.
With regard to the Compliance with the year of separation are first of all the Information provided by the spouse in court is decisive - if both partners state that you have been separated for over a year, this will not be checked further. If the divorce is filed an insignificant time before the end of the year of separation (up to a maximum of 2 months), this is usually harmless, the courts then often overlook this short shortfall in the year of separation.
The shorter the marriage and the less there is to "regulate", the faster the divorce can be carried out. A childless marriage with a duration of less than three years can be divorced fastest if the spouses waive the pension adjustment. However, a so-called "short marriage" is not a reason for a quick divorce - here, too, you have to wait for the year of separation.
3. Lightning separation due to unreasonable hardship
According to the regulation of § 1565 Abs. 2 BGB, a marriage can (only) be divorced before the end of the year of separation if the Continuation of the marriage an "unreasonable hardship" for one spouse and the reasons for this hardship lie with the other spouse (so-called lightning divorce). In other words, there must be reasons for the termination of the marriage that are so grave that an almost immediate termination of the marriage is the only reasonable solution.
The reasons for the hardship divorce must be objective and presented to the court by the person who invokes these reasons. In Germany, case law has worked out typical cases, which reasons are sufficient for a hardship divorce and which cannot yet justify a hardship divorce. Nevertheless, the circumstances of the individual case are always decisive.
4. Reasons that are insufficient for a lightning divorce
That the There must be objective reasons for a lightning or hardship divorce, means, first of all, that the spouse's subjective assessments and feelings are not sufficient to end the marriage prematurely without a year of separation. So it is not enough if perceived lovelessness or emotional coldness are brought forward to portray a continuation of the marriage as "unreasonable".
The courts are generally strict here: Careless housekeeping or frequent scenes of jealousy are not enough, but even adultery or one-off physical abuse as a "slip" does not lead to an immediate divorce due to hardship. Even rape in marriage is not sufficient if the wife subsequently returns to the husband. All in all, "affairs" are very controversial when it comes to the justification of a lightning divorce: Adultery is only a reason for a lightning divorce if it continues for a certain period of time (at least three months).
If, on the other hand, a relationship is established with a same-sex partner, this can be sufficient for a quick divorce without a year of separation.
5. What can justify a lightning divorce?
The courts have already dealt with a variety of reasons put forward for a hardship divorce. The courts considered the following to be sufficient reasons for hardship:
- Alcohol addiction / drug addiction the other partner has no prospect of improvement because rehab has been rejected or has failed
- Repeated violence against spouses and children
- Death threats and others Threats, serious insults
- Adultery of considerable duration and intensity, especially in the marital home (OLG Cologne, decision of September 18, 1998, Az. 25 WF 162/98)
- Others degrading treatmentse.g. abuse in front of the children or starting prostitution
- When a new relationship was taken up and by the new partner Child expecting becomes.
- The Failure to pay alimony for the wife or childrencan lead to a divorce because of unreasonable hardship (OLG Stuttgart, judgment of 08.08.1978, Az. 16 WF 200/78 ES); However, the failure to pay maintenance alone is not a sufficient reason for an immediate divorce (OLG Stuttgart, judgment of February 7, 2001, Az. 18 WF 44/01).
In any case, the following should be noted here: Since the existence of a reason for hardship must lie in the person of the spouse and this reason must be brought to court by the other spouse who wants the immediate divorce, what (must) often happen in court one actually would rather avoid: In order to show the misconduct of the other, “dirty laundry is washed” in court.
6. Divorce under foreign law
In the case of an international divorce, this may be Divorce law of another country applicable, which does not provide for a year of separation. One speaks of an international divorce if at least one of the spouses has a foreign nationality or is domiciled abroad. Basically: In some case constellations there is a right to choose between the divorce laws of different countries. Here it is important to carefully weigh up and check which legal consequences in their entirety are viewed as more favorable and more desirable overall. In such a case, it is best to contact an experienced lawyer specializing in international family law.
7. Annulment of the marriage
In addition to divorce, there is also the possibility of annulment in Germany. However, such a possibility only exists within narrow limits, for example if the prohibition of double marriage has been violated or because of fraudulent misrepresentation, for example about existing criminal records. A further possibility of annulment or contestation of a marriage does not (any longer) exist in Germany.
The path to a lightning divorce due to undue hardship is often arduous and emotionally stressful. Therefore, the other ways of ending the marriage should be considered. It becomes particularly difficult when - as is so often the case - only one of the two partners wants a divorce or there are other differences of opinion. General advice is particularly difficult here. Legal advice helps and can contribute to assessing the overall situation as objectively as possible and finding an objective solution.
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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 contact law as well as marriage contracts and separation agreements.
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