🔑 Marital home and household goods on separation
In brief
For the time of separation, each spouse can demand that the marital home be left to them wholly or partly for sole use if this is necessary to avoid an unreasonable hardship – for example in cases of violence or where children in the household are affected (§ 1361b BGB). Household items can also be provisionally distributed for the separation period (§ 1361a BGB). These rules apply only temporarily, until the divorce.
Only with the divorce itself is the final allocation of the marital home (§ 1568a BGB) and the final distribution of the household items (§ 1568b BGB) decided – upon application, according to equitable considerations and in particular taking into account the child's best interests.
Step by step
- Try to reach an agreementIf possible, settle by agreement who stays in the home temporarily and how the household goods are divided.
- In danger, get help immediatelyIn cases of violence or threats, your protection takes priority – contact the police or an advice centre, regardless of the family law procedure.
- Consider an application for allocation of the homeWithout agreement, the family court can provisionally allocate the marital home to one spouse for the separation period (§ 1361b BGB).
- Have household goods provisionally distributedA provisional court ruling is also possible for household items (§ 1361a BGB).
- Final settlement with the divorceIn the divorce proceedings or afterwards, the final allocation of the home and household goods can be applied for (§§ 1568a, 1568b BGB).
Deadlines
- Anyone who unilaterally changes the home or locks the other person out risks unlawful self-help – if in doubt, have conflicts over who stays in the home settled by a court.
- If you move out and show no recognisable intention to return for 6 months, it is irrebuttably presumed that you have left the home to the other spouse – important if you want to keep a return open.
- Do not wait too long after the divorce with an application for final allocation of the home or household goods – one year after the divorce becomes final, the claim may have expired.
- In cases of acute violence, an immediate allocation of the home may also be possible independently of the standard family law procedure (Protection against Violence Act, Gewaltschutzgesetz) – in a situation of danger, contact the police or an advice centre first.
In depth · legal basis, figures and practice – for advisers and professionals
Separation period: §§ 1361a and 1361b BGB
For the period of living separately, § 1361b BGB regulates the temporary transfer of the marital home where this is necessary to avoid an unreasonable hardship – for example in cases of violence in the relationship, for which the Protection against Violence Act additionally provides its own, often faster procedures. § 1361a BGB regulates in parallel the provisional distribution of household items for the separation period.
After the divorce: §§ 1568a, 1568b BGB
Only with the divorce is the final allocation of the marital home decided. § 1568a BGB grants a claim to transfer if a spouse – in particular taking into account the child's best interests – depends on the home to a greater degree or this accords with equity for other reasons. If the other spouse is sole or co-owner, transfer can only be demanded to avoid an unreasonable hardship. § 1568b BGB regulates correspondingly the final distribution of household items that are jointly owned; for items acquired during the marriage, a presumption of ownership in favour of both spouses applies.
Cut-off period
Under § 1568a Abs. 6 BGB, the claim to enter into or establish a tenancy expires one year after the divorce becomes final if it has not been brought to court beforehand. Case law applies this cut-off period by analogy to the claim to transfer itself.
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