How do we decide who stays in the property?

In principle, you must distinguish between the ownership of the property and its use. Both must be regulated in the event of separation and divorce.

When separating, one of the two partners usually moves out. The other partner stays in the apartment or home with the minor children. If the partner moving out wishes to take one or all of the children with them to their new home, they must agree this with the other partner.

If more than six months have passed since moving out, it is generally no longer legally enforceable to return to the previous shared marital home. If neither spouse wishes to move out in the event of separation, a court must decide who may use the shared home and who must move out. The judges base their decision on the best interests of the child. Their aim is to ensure that the children can remain in their familiar environment, i.e. with the partner who remains in the previous home.

If the husband moves out and the wife stays with the children in the shared marital home, which is the most common case, she must pay the separated partner compensation for use, i.e. rent. Unless it is agreed that this housing value advantage will be taken into account in the equalization of gains.

This rent may initially be lower than the standard local rent. If the living conditions survive the divorce and the man buys the house and rents it to his ex-wife, she must then pay rent at a regular rate.

There is no need to wait until the divorce to sell the property; both parties can sell the property during the year of separation and divide the proceeds between them.

This reduces the time pressure when selling and has the advantage that, in the event of an equalization of accrued gains in the event of a divorce, funds are available with which one partner can pay the other. However, this route should only be taken if both partners are sure they want to divorce and neither wants to remain in the property.

Have you decided not to stay in the property and want to sell or rent it out? Contact us now. We will be happy to support you.

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