Divorce property: when one person stays in it

For many people, a happy marriage and their own home are the fulfillment of their life goals. But what happens to the property when the marital bliss is over? Who gets the right of residence? And what options are there for dealing with the property?

In principle, both ex-partners may live in the jointly used property for a certain period of time after the separation. If the use extends beyond the divorce, the entry in the land register also has an effect on the subsequent right of residence. However, there is an exception to every rule. Under certain circumstances, the ex-partner who does not own the property can also be awarded a right of residence by the family court. Who owns the right of residence also depends on the timing. Different rules apply during the year of separation and after the divorce has been finalized.

Before the divorce is finalized

Even if only one ex-partner is registered as the owner, neither may evict the other from the property during the entire period of separation. After all, it is still a matrimonial home during this period. If the spouse still wants to move out but is not prepared to do so, an application can be made for an allocation procedure. A family court judge allocates the joint property to one of the spouses. This decision is only valid until the end of the separation period.

If the ex-partner is violent or harms the child's welfare

If one of the ex-partners is violent, protection against violence proceedings can also be initiated. The ex-partner who poses a danger to the other and to the welfare of the joint children is ordered to leave the property. If one of the spouses moves out during the separation period, they are entitled to compensation for use of the property. Until the divorce is final, the spouse using the property pays a regular amount to the other spouse. In some cases, this also applies after protection of rights proceedings. The amount of compensation must be calculated. The local rent index also influences the amount of the payment.

After the divorce

After the separation, one of the ex-partners can sell their share of the property to the other. This requires a professional valuation in advance so that the share can be paid out fairly. If only one ex-partner is the owner and wants to move out, it is possible to rent the property to the other party. If the sole owner wishes to remain in the property, this is only possible if the ex-partner is not threatened with undue hardship if they move out. This may be the case, for example, in the event of serious illness.

If the property has not yet been paid off

If the property still needs to be paid off, it is important to check whether the remaining ex-partner can pay the monthly installments. To do this, owners should sit down with their loan partner. If the payment cannot be continued alone, selling the property is often the better solution. And no matter what you decide, owners should make the decision together. A regional, impartial and jointly selected estate agent can support owners well with their experience and market knowledge.

Are you going through a separation or are you already divorced and don't know what to do with your property? Then contact us. We will be happy to support you.

Notes

For reasons of better readability, the generic masculine is used in this text. Female and other gender identities are explicitly included where this is necessary for the statement.

Legal notice: This article does not constitute tax or legal advice in individual cases. Please consult a lawyer and/or tax advisor to clarify the facts of your specific individual case.

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