Home &
household
Matrimonial home, property & household goods:who lives there, who owns what
Dietrich Karcher, attorney at law · as of July 2026
In a separation, home is rarely just a question of assets. It is the place where the children go to school, where the furniture stands that you chose together, and the one that one of you has to leave.
In law this single place falls apart into three separate questions that get mixed up constantly in everyday life: who may stay living here for the time being? Who owns the property? And who takes which household goods?
Use
The yardstick is hardship in the individual case (§ 1361b BGB).
Ownership
The yardstick is the land register.
Household goods
The yardstick is equity (§ 1568b BGB).
Living in the house does not mean receiving it; and being in the land register does not automatically mean being allowed to stay.
The
use
Who may stay in the home after the separation?
That is decided by hardship in the individual case, not by ownership (§ 1361b BGB). A spouse can demand the home for themselves alone where continuing to live together would mean unreasonable hardship, for instance in cases of violence or to protect the children.
Anyone who moves out voluntarily should know one point: if within six months they do not seriously indicate that they wish to return, the sole right of use passes to the other, and irrebuttably so (§ 1361b (4) BGB). Moving out is therefore not yet a waiver of ownership, but it is one of use. Compensation for use remains possible alongside (§ 1361b (3) BGB).
With the divorce the home is then allocated definitively (§ 1568a BGB). What counts is who depends on it more, above all with a view to the children. With a rented home the remaining spouse takes over the tenancy alone, and the landlord has to accept that. With owned property the position as owner weighs more heavily, but even then leaving it to the other for a limited period remains possible.
The
ownership
Who owns the shared house?
Ownership is decided solely by the land register, and the divorce changes nothing about it: a family court does not redistribute co-ownership. Whoever lives in the house or services the loan acquires no share by doing so.
Where the property belongs to both, three routes lead out of co-ownership. One buys the other out, both sell to a third party, or one forces a partition auction (§ 180 ZVG). The third route is the last and usually the most expensive, because the proceeds are as a rule below what a free sale would have brought.
The growth in value that arose during the marriage is treated independently of that: it runs through the equalization of accrued gains and thus through a pure claim for money. Ownership and the balancing of value are two levels that touch in the result but follow rules of their own.
The expensive
details
Loan and tax
Here the order and the timing decide amounts that are considerable in relation to the value in dispute, and they cannot be corrected later.
A joint loan binds both towards the bank, regardless of who moves out and who pays between them. Only someone the bank expressly releases gets out of that liability. An arrangement between the spouses is not enough for it. How external liability, internal balancing and the accrued gains differ is set out in debts in the divorce.
The second point concerns timing. Where the property is sold within ten years of its purchase, speculation tax can arise (§ 23 EStG). On top of that, moving out yourself can end the tax-free use as your own home, even where a child and your former partner continue to live there.
The household
goods
How are household goods divided?
What was acquired during the marriage for the joint household counts as shared property and is divided according to equity (§ 1568b BGB): whoever depends on it more receives it against appropriate compensation, often the parent the children live with.
What a spouse owns alone or brought into the marriage, by contrast, stays theirs. Furniture and objects of daily life therefore follow a logic of their own, independently of the question of who owns the house.
How we
support you
Thinking law, financing and tax together
With property, three things meet that are rarely thought about together. A route that is clean in law can be the worst one economically, and a moment that is favourable for tax can fail at the bank.
In concrete
terms
First sort it out, then negotiate
In practice that starts with sorting: we separate use, ownership and household goods and clarify what there is to negotiate about at all. We enforce the right of use or fend it off (§§ 1361b, 1568a BGB), examine the cheapest route out of co-ownership for the property, negotiate with the bank about release from joint liability and settle the balancing between you.
We look at the timing of a sale from the tax side before anything is signed. In the end all of it can be recorded bindingly and bundled in a divorce settlement agreement.
The first conversation takes place at Frankenallee in Frankfurt-Gallus or by video, in German, English or Spanish as you prefer. Useful for it are the land register extract, the loan agreement and the current state of the loan; we reply to written enquiries usually within one working day.
How the process
runs
From the three levels to the agreement
At the start stands separating the three levels, because otherwise the wrong point gets negotiated. Then the use is settled: who stays for now, which periods are running, whether compensation for use comes into question.
In parallel, ownership and financing: land register, loan, buy-out or sale. The tax moment belongs examined before anything is done, not after. And at the end stands the division of household goods, best of all together with everything else in one agreement.
That is the usual course; an individual case may differ (as of 2026).
Frequent
questions
What we are asked most often about this
What is compensation for use?
Where one spouse stays alone in the shared home after the separation, the other can demand compensation for that (§ 1361b (3) BGB). It balances out that one of them uses the whole value of the housing although both are entitled to the home. Whether it comes into question and in what amount depends on the individual case and is often looked at together with maintenance.
Does living in your own property affect maintenance?
Yes, it can. Anyone living rent-free in their own house has an economic advantage from that which can be taken into account in the maintenance calculation. How that housing advantage is entered and what it means alongside loan instalments we cover in detail in the article the property on separation.
Can all of this be settled in one contract?
Yes, and usually that is the calmer route. The home, the property, household goods, the loan and the accrued gains can be settled bundled in a notarized divorce settlement agreement instead of bringing every question before the court separately. What belongs in it and where the limits lie is on our page on the divorce settlement agreement.
What comes
next
Read on where your question currently stands
The property in the equalization of accrued gains
Where the property is at the centre, much hangs on the value at which it enters the assets calculation. An inherited house counts towards the privileged initial assets. Only the increase in value during the marriage enters the calculation.
ReadSeparationThe property on separation: use, housing advantage and ownership
Where the first question is who lives where after the separation and what that means for maintenance and the housing advantage.
ReadMaintenanceSeparation & maintenance
How the housing advantage and the maintenance calculation are connected.
ViewDebtsDebts in the divorce
External liability, internal balancing and accrued gains kept apart.
ReadSources
The provisions mentioned in the text in their official wording at “Gesetze im Internet”, the portal of the German Federal Ministry of Justice.
Contact
You do not have to take the first step alone
Tell us about your situation. We reply personally, usually within one working day.