The marital home, the property and the household goods

In law this one place falls into three questions that constantly get mixed up in daily life. Who may go on living here for now, who owns the property, and who takes which household goods? Each follows a measure of its own: use follows the hardship of the individual case (§ 1361b BGB), ownership follows the land register, the household goods follow equity (§ 1568b BGB).

Use is therefore decided by the hardship of the case and not by ownership. One side can demand the home for itself alone where living together any longer would mean unreasonable hardship, for instance where there is violence or to protect the children. Compensation for the use remains possible alongside (§ 1361b (3) BGB).

With the divorce the home is allocated for good (§ 1568a BGB). What counts is who depends on it more, above all with a view to the children. Where the home is owned, the position of the owner weighs more heavily, but even then leaving it to the other side for a fixed period stays possible.

Depending on which side you are on, we enforce the right to the home for you or defend against it: during the separation under § 1361b BGB, and with the divorce under § 1568a BGB.

Ownership is decided by the land register alone, and the divorce changes nothing about that. A Familiengericht (family court) does not divide co-ownership. Anyone living in the house or servicing the loan acquires no share by doing so.

Where the property belongs to both of you, three routes lead out of co-ownership. One side buys the other out, both sell to a third party, or one forces a partition sale by auction (§ 180 ZVG). The third route is the last and usually the most expensive, because the proceeds are as a rule below what a sale on the open market would have brought.

The increase in value that arose during the marriage is treated separately from that. It runs through the Zugewinnausgleich (equalization of accrued gains) and so through a pure claim for money. Ownership and the equalization of value touch each other in the result, but they follow rules of their own.

A joint loan binds both of you towards the bank, regardless of who moves out and who pays as between the two of you. The only way out of the liability is for the bank to release you expressly. An arrangement between the spouses is not enough for that.

The second point concerns timing. Where the property is sold within ten years of the purchase, tax on the gain can fall due (§ 23 EStG). On top of that, moving out yourself can end the tax-free use as your own home, even where the child and the former partner go on living there.

Whatever was acquired during the marriage for the joint household counts as joint property and is divided according to equity (§ 1568b BGB). Whoever depends on it more receives it against appropriate compensation, frequently the parent the children live with.

Whatever one side owns alone or brought into the marriage stays theirs. Furniture and everyday objects therefore follow a logic of their own, independently of the question of who owns the house.

Where the home is rented, the side that stays takes over the tenancy alone, and the landlord has to accept that (§ 1568a BGB). Who is named in the agreement therefore does not decide it.

Until then the agreement continues as it was concluded. Where both of you are named in it, both of you are liable for the rent, regardless of who actually lives there. That is the same position as with a joint loan, only with a landlord instead of a bank.

With property, three things meet that are rarely thought about together: the law, the financing and the tax. A route that is legally clean can be the worst one economically, and a moment that is favorable for tax can fail at the bank.

This area is the responsibility of Dietrich Karcher. He judges a buy-out figure by whether a bank would later finance it, too. In the end what counts is a solution both sides can actually afford.

Useful things to bring to the appointment are the land register extract, the loan agreement and the current state of the loan. You are under no obligation to hire us afterwards.