The jointly rented home on separation: who stays, who is liable

Who may stay in the home?

Who stays is not decided by the lease. As long as you are married, both of you may use the marital home, even if only one of you is the tenant. Ideally, you agree on who stays. If that fails, the Familiengericht (family court) can allocate the home to one of you alone for the period of separation, where this is necessary to avoid undue hardship § 1361b (1) BGB.

Undue hardship can also exist where the well-being of children in the household is affected § 1361b (1) sentence 2 BGB. If one spouse has intentionally injured or seriously threatened the other, the affected spouse is usually given the whole home § 1361b (2) BGB. In acute cases, the Gewaltschutzgesetz (Protection Against Violence Act) also helps, and the police can order a person to leave the home at once.

Without a court allocation, neither of you may lock the other out. So do not change the locks or put the other’s belongings out on the street. The spouse who uses the home alone may have to pay the other compensation § 1361b (3) sentence 2 BGB.

Six months for the spouse who moves out

If you move out after the separation, you have six months to announce a return. If you do not seriously announce within six months of moving out that you intend to return, the law irrebuttably presumes that you have left the home to the other spouse for their sole use § 1361b (4) BGB.

If you do not want to give up the home, say so in writing, and be specific. A sentence like “I reserve all rights” is not enough. If you want to leave and do not intend to return, the deadline costs you nothing, because it has nothing to do with liability under the lease.

Moving out does not end the lease

If you are both on the lease, you both remain tenants even after one of you moves out. You can only terminate the lease jointly. The landlord does not have to release the spouse who moved out, and as long as the landlord does not, that spouse remains liable for the full rent and utilities. That can go on for years if nobody does anything.

The spouse who moved out can, however, demand that the other cooperate in their release. According to the Higher Regional Court of Hamm, they can demand already during the separation that the other co-sign the notice to the landlord, which takes effect when the divorce becomes final. Cooperation may not be made conditional on first settling the costs arising from the lease OLG Hamm, decision of January 21, 2016, 12 UF 170/15. The Higher Regional Court of Oldenburg held that there is a duty to consent to a joint termination once the Trennungsjahr (year of separation) has passed. It did so at least for the case where the spouse who stays does not indemnify the other against the rent OLG Oldenburg, decision of March 29, 2021, 13 UF 2/21. Case law is not uniform; other courts have refused to require cooperation before the divorce is final.

The right route depends on what the spouse who stays wants:

• They want to stay. Then you can agree jointly with the landlord that they continue the lease alone. If the landlord refuses, the notice after the divorce, which does not need the landlord’s consent, helps.
• Neither wants to stay. Then you terminate jointly and agree on who pays until the notice period ends.

After the divorce, a notice is enough

Once the divorce is final, the spouse to whom the home is left can take over the lease alone. It is enough for both of you to notify the landlord. When the notice is received, but no earlier than when the divorce becomes final, the spouse who stays continues the lease alone, and the other drops out § 1568a (3) sentence 1 no. 1 BGB. The landlord does not have to consent. The landlord can only terminate for cause if there is a compelling reason in the person of the spouse who stays § 1568a (3) sentence 2, § 563 (4) BGB.

The claim lapses one year after the divorce becomes final unless it has been brought before the court by then § 1568a (6) BGB. Make sure the notice reaches the landlord within that year. What else becomes time-barred or lapses after the divorce is covered in Property, maintenance, home: the deadlines after a divorce.

If only one of you is on the lease

A spouse who is not on the lease may still stay in the home as long as you are married. The Familiengericht (family court) can even allocate the home to them alone for the separation period. After the divorce, they can take the tenant’s place in the lease if they depend on the home more, for example because of the children, or if fairness requires it § 1568a (1), (3) BGB.

The weak spot is the time in between. If the spouse who is the sole tenant moves out and terminates the lease, the termination is effective toward the landlord, whether or not it breaches marital duties OLG Frankfurt, decision of February 20, 2013, 5 UF 14/13. If you want to stay in such a home, talk to the landlord early about whether they will sign a lease with you.

Who pays the rent after one spouse moves out

Toward the landlord, you both pay as long as you are both tenants. Between the two of you, the starting point is an equal split. If the spouse who stays has chosen to remain in the home, they bear the rent alone. Until the end of a joint notice period, the spouse who moved out may still have to contribute OLG Bremen, decision of February 17, 2016, 4 WF 184/15. If the spouse who moved out keeps paying the rent, for example so that the children can stay in the home, this can be taken into account in maintenance. There is then no further compensation for it. Record in writing who pays from when. How maintenance during separation is calculated is described in Separation maintenance: who gets how much, and from when?

The deposit belongs to both tenants jointly, and the landlord repays it to both at the end of the lease. If one of you leaves the lease earlier, the deposit stays with the landlord. Agree in writing on who is entitled to which share. The same applies to back payments from the utility statement for the time you still lived together.

The next step

At our office, attorney Dietrich Karcher handles questions about the marital home, and attorney Mieke Karcher handles maintenance during the separation. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How the further fees are calculated is set out under Costs. If you own the home, Property on separation: use, housing advantage, ownership describes what applies. The overall framework is described on our page on the marital home, property and household goods.