other day we were dealing with the complex constellation into a representation before the Higher Regional Court of Cologne, if a spouse after about two years of separation does not want a divorce. There could be several reasons. How courts respond?
First, the question must be answered: When is a marriage so disorganized that express even after the expiry of one year of separation, even against the will of the other is a divorce?
The spouses live separately known, when they no home and a community spouse evidently will not, because he rejects the marital relationship. The domestic community, there is also no longer if the spouses live separately within the matrimonial home.
It is by law an irrefutable presumption that the marriage has broken down if the spouses have lived apart for one year and requested by both spouses, divorce, the respondent consents to the divorce. The divorce petition a spouse is only a weak and not sufficient evidence to permit the marriage. An indication (not proof) for the failure of marriage is usually the consent of the other spouse to divorce, without prejudice to whether this is a consent is that in content and form to the requirements of § 1566 is sufficient para 1 BGB. When it comes to the issue of disruption, indications are to "collect".
The time for separation is considered as an essential indicator for the disorder, the authenticity of which increases with increasing separation time. As another sure sign of the final breakdown of the marriage, the fact must be considered when both the applicant and the defendant have now turned away from the marriage and each new partnerships have been received.
ranges according to the case of a unilateral disruption on the part of either spouse. It is sufficient that can be seen from the conduct and regarded as credible the testimony given by both spouses requesting a divorce that he prepared, under any circumstances, to its partner way back and continue the marriage. The presentation, the parties have been separated for more than a year and the other spouse wants to be divorced and will agree to a request is, however, not sufficient for a consistent application.
The absolute will of either spouse to maintain the marriage enough, considered insufficient to the discovery of a disruption to escape the marriage the ground. It does not matter why a spouse will not continue the marriage. His reasons do not have to be reasonable. It suffices here discernible subjective attitude of desiring the divorce complaining party, if it is expressed then called upon, that the restoration of marriage is no longer anticipated. In fact, it is enough to be seen from the behavior and the credible statements of the spouse requesting the divorce that he is willing, under any circumstances, for the other spouse way back and continue the marriage. A marriage is therefore also shattered as if only one spouse is - for whatever reason - has turned final and the marriage is considered exclusively as a deep slump, because then a restoration of the marital partnership can not be expected kann.Ein example from the case: If the behavior of the divorce volunteer against the defendant for a period of about 1 1 / 2 years so far that he (or she) every contact - tried to prevent, the apartment changes after the defendant that has been identified - even by recourse to legal assistance and is trying with all means at their disposal to thwart the attempts of the defendant's proximity, the Restoration of conjugal cohabitation is not likely.
lawyer Dr. Palm may, among other things to practice before all German Higher Regional Courts.
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