Right of residence in the event of divorce and separation

There is a lot to clarify in a divorce. If you have your own apartment or house, the question of the right of residence often arises. But who has the right of residence and when? And what should owners bear in mind?

When married couples want to divorce, both partners very often grant themselves the right of residence. This in turn often ends in a dispute. This usually makes the situation worse and, above all, does not resolve the question of who stays in the property.

How the right of residence is viewed depends on whether the ex-couple is still in the year of separation or whether the divorce has already been finalized. However, the family court always has the final say in the event of a dispute.

Right of residence during the year of separation

When it comes to the right to live in the previously jointly used property, the rule of thumb is: equal residential and usufructuary rights for all. Even if only one of the two ex-partners is listed in the land register. However, this only applies to the year of separation. If the ex-couple cannot agree on who moves out, there are two options.

Either the family judge makes the decision or the separation within the property. This only applies to rooms such as the bedroom, where individual use is possible. The bathroom, kitchen and hallway can still be shared by both ex-partners.

No matter how estranged the ex-couple is, it is not advisable to change the door lock or expel the other person from the apartment or house. This often has legal consequences.

When the divorce is finalized

If one of the ex-partners is the sole owner of the property, they can rent the house or apartment to the other. The agreed rent, which requires customary local conditions, can also have an influence on spousal maintenance.

In special cases, the court can grant the ex-partner who is not listed in the land register the sole right of residence. However, this only applies if this ex-partner would face undue hardship if they moved out. One such reason is, for example, poor health.

If both ex-partners own the property, one of the partners can take over the other's share. If this is not a solution for the ex-couple, the only option is usually to sell the property. A partition auction by the local court has more disadvantages for the owners and should be avoided.

Are you unsure what should happen to your divorce property? Get in touch with us! We will be happy to advise 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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