Property and the Matrimonial Home
The question of who may use the matrimonial home following separation and divorce is of central importance to the lives of both partners. Under German law, a strict distinction is made between the separation phase and the period after the divorce becomes final. The legislator’s aim is to prevent escalation and, in particular, to protect the welfare of children living in the household. DR. SCHMIDT LEGAL assists you in securing your rights of use or in reaching a fair arrangement regarding vacating the property and financial compensation.
Use of the Property During the Separation Phase
Between separation and divorce, the matrimonial home remains a legally protected space. Pursuant to Section 1361b BGB, a spouse may request sole use of the property if this is necessary to avoid "unreasonable hardship" (unbillige Härte). Such hardship is particularly relevant if the welfare of children in the household is at risk or if violent altercations occur. It is important to note that ownership is often secondary during separation: even if one partner is the sole owner, they cannot simply evict the other without a court order or a mutual agreement.
Final Allocation After Divorce
Once the divorce is final, the legal basis shifts to Section 1568a BGB. The Family Court allocates the home to the partner who is more reliant on its use, taking into account the welfare of the children and the living conditions of the spouses. While social criteria—such as proximity to work, local roots, or accessibility due to illness—play a significant role, child welfare remains the primary benchmark for the court's assessment.
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If there is a joint tenancy agreement, the court has the power to order that one partner be removed from the contract while the other continues it alone. In the case of owned property, the court may order the creation of a fixed-term tenancy in favour of the non-owning partner to avoid hardship.
Occupation Rent and Financial Burdens
If one partner leaves a jointly owned property (or one solely owned by the remaining partner), the question of financial compensation arises. The departing partner is generally entitled to occupation rent (Nutzungsentschädigung). This is based on local market rates but is often calculated moderately during the separation year. DR. SCHMIDT LEGAL calculates these compensatory payments and ensures they are correctly offset against maintenance claims to avoid double payments.
Strategische Lösungen durch Scheidungsfol-genvereinbarung-en
Um langwierige Räumungsprozesse oder gerichtliche Zuweisungsverfahren zu umgehen, empfiehlt DR. SCHMIDT LEGAL den Abschluss einer Scheidungsfolgenvereinbarung. In einem solchen Vertrag kann bereits frühzeitig festgelegt werden, wer die Wohnung übernimmt, bis zu welchem Zeitpunkt der Auszug erfolgt und wie der im Haus verbleibende Partner den anderen abfindet. Dies ist besonders bei Eigentumswohnungen und Häusern sinnvoll, um den Verkauf der Immobilie oder eine Teilungsversteigerung zu verhindern. Durch klare vertragliche Regelungen wird so für beide Seiten Planungssicherheit geschaffen und der wirtschaftliche Wert der Immobilie bewahrt.
Real Estate in the Equalisation of Accrued Gains
In legal practice, the treatment of real estate within the equalisation of accrued gains (Zugewinnausgleich) often represents the most significant financial challenge. Since property usually constitutes the primary share of asset growth during a marriage, its correct valuation is decisive in determining the level of the equalisation claim.
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DR. SCHMIDT LEGAL assists you in precisely assessing property values and developing legally sound strategies to prevent the forced liquidation of real estate or equalisation payments that could threaten your financial existence.
The Key Date Principle and Valuation
Two specific points in time are crucial for calculating the accrued gains: the date of the marriage for the initial assets (Anfangsvermögen) and the date the divorce petition is served for the final assets (Endvermögen). The value of a property must be determined exactly for both key dates. As property prices can fluctuate massively over decades, a simple purchase receipt is often insufficient. The current market value must be considered alongside value-enhancing factors such as renovations or extensions. Simultaneously, the initial assets are indexed to account for inflation, ensuring that only the real increase in wealth is equalised.
Consideration of Debts and Land Charges
In the equalisation of accrued gains, a property is never viewed in isolation but always in conjunction with its associated liabilities. When calculating final assets, outstanding loans are deducted from the market value. Complications often arise when both spouses are jointly and severally liable for a mortgage, but only one is registered as the owner in the Land Registry (Grundbuch). DR. SCHMIDT LEGAL ensures a clear separation between the external liability towards the bank and the internal distribution of assets between the spouses to avoid unjustified double burdens.
Gifts and Inheritances Involving Real Estate
A common point of contention is the classification of property that one partner inherited or received as a gift during the marriage. Pursuant to Section 1374 (2) BGB, these are credited to the initial assets. This means that the property itself does not fall into the equalisation pool; only its increase in value during the marriage is subject to equalisation. DR. SCHMIDT LEGAL assists you in documenting these values meticulously to protect your private family wealth from claims by an ex-partner.
Strategies to Prevent the Sale of Real Estate
The greatest risk in the equalisation process is that a high claim may force the debtor to sell the property due to a lack of liquid funds. To prevent this, the law offers various solutions, including the deferral of the claim in cases of unreasonable hardship or the transfer of co-ownership shares in lieu of cash payment. Within a Divorce Settlement Agreement, individual severance arrangements can be made to secure the retention of the property—for instance, as the primary residence for the children. DR. SCHMIDT LEGAL moderates these negotiations to find economically viable solutions that go beyond purely mathematical division.
Domestic Violence
The Protection Against Violence Act (Gewaltschutzgesetz – GewSchG) provides a highly efficient legal framework to protect victims of domestic violence quickly and effectively. In family law, this area is particularly sensitive as it is often directly linked to the separation process and the question of remaining in the joint home.
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DR. SCHMIDT LEGAL supports victims in obtaining state protection measures at short notice and provides counsel on defending against unjustified allegations to prevent the misuse of such measures during separation conflicts.
Protection Orders and Non-Molestation
The core of the Protection Against Violence Act lies in the ability to prohibit a perpetrator from certain behaviours via court orders. This includes, in particular, a ban on entering the victim’s home, approaching them within a specified distance, or making contact via telephone, email, or social media. These measures can be issued in response to threats or stalking, even before physical violence occurs. The Family Court generally acts via interim injunctions (einstweiliger Rechtsschutz), meaning protection orders can often be issued within a few hours or days without a shared hearing.
Allocation of the Home in Cases of Domestic Violence
A central instrument of the Act is the allocation of the matrimonial home for sole use pursuant to Section 2 GewSchG. If a perpetrator has physically abused the victim or threatened such abuse, the court can order the perpetrator to vacate the shared home immediately. This applies regardless of who owns or rents the property. The right to physical integrity and protection from violence takes precedence over property rights. While this allocation is usually temporary, it provides the victim with the necessary space to initiate further legal steps.
Interaction with Custody and Access Rights
Domestic violence has a massive impact on other family law proceedings, especially when children live in the household. A court-established history of violence regularly leads to a review of access rights (Umgangsrecht). To protect the child’s welfare, contact may be restricted, placed under the supervision of a third party (supervised contact), or entirely excluded in serious cases.
DR. SCHMIDT LEGAL ensures that findings from protection proceedings are consistently integrated into ongoing custody and access cases.
Criminal Consequences and Civil Litigation
Violations of court orders issued under the Protection Against Violence Act are criminal offences pursuant to Section 4 GewSchG and can be punished with imprisonment or a fine. Parallel to criminal prosecution, civil claims for damages (Schmerzensgeld) may be asserted. Simultaneously, DR. SCHMIDT LEGAL represents clients against unjustified applications. In high-conflict separations, the Act is sometimes instrumentalised to tactically force a partner out of the home. In such cases, we strive to maintain the integrity of the process and prevent reputational damage through precise factual analysis and evidence.