Who stays?
Occupancy
Who stays in the home after separation.
The measure: hardship § 1361b · § 1568a Marital Home, Property & HouseholdWho stays,
who
owns what.
Three questions get lumped together at separation: who stays in the flat, who owns the property, who takes which furniture? Occupancy, ownership and household goods each follow their own rules – mix them up, and you negotiate over the wrong thing.
- Occupancy · ownership · household goods
- Tax trap covered
- Frankfurt-Gallus
Three layers
Occupancy, ownership, household goods – each with its own measure.
Hardship decides who stays in the home. The land register decides who owns the house. Equity decides who keeps which furniture. Three questions, three different measures – keep them apart.
Who owns it?
Ownership
Who actually owns the house and property.
The measure: the land register § 180 ZVG · gainsWho takes what?
Household goods
Who keeps which furniture and belongings.
The measure: equity § 1568bLiving in the house does not make it yours. Occupancy, ownership and household goods are three separate layers – and confusing them costs the most at separation.
Who gets to stay is decided by the hardship of the case, not by ownership.
Occupancy, ownership and household goods concern the same home, but follow separate rules. Treat them as one, and you fight over the wrong point.
- It means: each question has its own measure – hardship, land register, equity.
- It does not mean: that ownership decides occupancy – or the other way round.
Occupancy · separation
Who may stay in the home after separation?
The hardship of the individual case decides – ownership plays no role (§ 1361b BGB).
A spouse can claim the home for themselves alone if living together would amount to unreasonable hardship – for example in cases of violence, or to protect the children.
Moving out is not giving up everything. Move out voluntarily, and you should seriously declare an intent to return within six months – otherwise the other spouse gets sole occupancy rights, irrebuttably (§ 1361b(4)). A Nutzungsvergütung (use-compensation payment) remains possible (para. 3).
Occupancy · divorce
And after the divorce?
Only the divorce makes the Wohnungszuweisung (allocation of the home) final (§ 1568a BGB).
What matters is who depends on it more – above all with the children in mind.
For a rented flat, the spouse who stays takes over the tenancy alone – the landlord has to accept it. For owned property, ownership carries more weight, though a time-limited transfer of use to the other spouse remains possible.
Ownership
Who owns the shared house?
Only the land register decides ownership; the divorce itself changes nothing.
Living in the house, or paying off the loan, changes nothing – the divorce court does not distribute co-ownership. Where the house belongs to both, three ways lead out: one buys out the other, both sell to a third party, or one forces the Teilungsversteigerung (a partition auction) (§ 180 ZVG) – the last and usually most costly option, since the proceeds fall short of the open-market value.
The increase in value during the marriage is instead settled through the Zugewinnausgleich (equalisation of gains). Two separate layers – more on the equalisation of gains.
Loan & tax
What matters for the loan and for tax?
A joint loan binds both spouses to the bank – whoever moves out.
Only the bank’s express release ends liability – any internal arrangement between the spouses changes nothing.
Tax trap: timing the sale. Sell the house within ten years of buying it, and the Spekulationssteuer (speculation tax) can apply (§ 23 EStG) – and moving out ends the tax-free owner-occupier exemption, even if your child and ex-partner keep living there. Order and timing decide sums in the thousands.
Household goods
How are household goods divided?
By equity – whoever depends on it more, gets it (§ 1568b BGB).
Anything bought for the shared household during the marriage counts as joint property – unless sole ownership by one spouse is established. Distribution happens against reasonable compensation, often in favour of the parent the children live with.
What a spouse owns alone, or brought into the marriage, stays theirs. Furniture and everyday items follow their own logic, separate from the ownership question over the house. The Ehewohnung (marital home), property and the Hausrat (household goods) can, in the end, all be settled bindingly together in a divorce settlement agreement.
Services
What we support you with
From the first sort-through to a binding arrangement – so you do not lose where the most is at stake.
Initial sort-through
We separate occupancy, ownership and household goods, and clarify what is actually there to negotiate.
Allocation of the home
Enforcing or defending against occupancy rights at separation and divorce (§§ 1361b, 1568a BGB).
Property & payout
Buy-out, sale or partition auction – we find the most favourable way out of co-ownership.
Loan & liability
Negotiating release from joint liability, and settling the internal arrangement between spouses.
Tax & timing
Checking speculation tax and the timing of a sale before you act – often worth five figures (§ 23 EStG).
Household goods & agreement
Settling the division of household goods and the wider financial arrangement, bindingly and fairly.
Have what belongs together sorted early – and what belongs apart, separated.
Step by step
How to sort out the home, house and household goods
Five stages – order and timing decide sums in the thousands here.
- 1
Separate the three layers
Keep occupancy, ownership and household goods cleanly apart.
sort - 2
Clarify occupancy
Who stays, keep the deadlines, check use-compensation.
§ 1361b - 3
Ownership & financing
Land register, loan and payout – choose the most favourable way.
Land register - 4
Tax & timing
Check speculation tax and the timing of a sale before you act.
§ 23 EStG - 5
Household goods & agreement
Divide household goods by equity, and settle everything bindingly.
§ 1568b
The usual course – individual cases may differ. As of 2026.
Frequently asked questions
Good to know
Can the owner make the other spouse leave the home?
At separation, the hardship of the individual case decides, not ownership: a spouse can claim the home for themselves alone only if living together would mean unreasonable hardship – for example in cases of violence, or to protect the children (§ 1361b BGB). Only the divorce allocates the home permanently (§ 1568a BGB), based on who depends on it more by then.
What happens to the shared house at divorce?
Only the land register decides ownership. Divorce itself changes nothing, since the divorce court does not distribute co-ownership. Where the house belongs to both, three routes exist: one buys out the other, both sell to a third party, or one forces a partition auction (§ 180 ZVG). The increase in value during the marriage is instead settled through the equalisation of accrued gains, independent of the land register.
Do I stay liable for the joint loan after moving out?
Yes. A joint loan binds both spouses to the bank – regardless of who moves out, or who pays under the internal arrangement between them. Only the bank’s express release ends liability.
How is the household split up?
Anything bought for the shared household during the marriage counts as joint property and is divided by equity – whoever depends on it more, such as the parent the children live with, gets it against reasonable compensation (§ 1568b BGB). What a spouse owns alone, or brought into the marriage, stays theirs.
Sources
Legal basis
The provisions mentioned in the text, in their official wording on the “Gesetze im Internet” portal of the Federal Ministry of Justice.
Contact
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