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Right of residence in the event of divorce and separation

There is a lot to sort out when getting divorced. If you own your own apartment or house, the question of right of residence often arises. But who has the right of residence and when? And what should owners bear in mind?

When married couples want to divorce, both partners very often grant each other the right to remain in the family home. This often ends in dispute. This usually exacerbates the situation and, above all, does not resolve the question of who gets to stay in the property.

How the right of residence is viewed depends on whether the former couple is still in the separation year or whether the divorce has already been finalized. However, the family court always has the final say in the event of a dispute.

Right of residence during the separation year

When it comes to the right of residence in the property previously shared, the rule of thumb is: equal rights of residence and use for all. This applies even if only one of the former partners is listed in the land register. However, this only applies during the year of separation. If the former couple cannot agree on who should move out, there are two options.

Either the family court makes the decision or the separation takes place within the property. This only applies to rooms such as the bedroom, where individual use is possible. The bathroom, kitchen, and hallway can still be used jointly by both ex-partners.

No matter how estranged the former couple is, it is not advisable to change the door locks or evict the other person from the apartment or house. This often has legal consequences.

When the divorce is final

If one of the ex-partners is the sole owner of the property, they can rent out the house or apartment to the other. The agreed rent, which must be in line with local conditions, may also affect spousal support.

In special cases, the court may grant sole right of residence to the ex-partner who is not listed in the land register. However, this only applies if the ex-partner would face unreasonable hardship if they moved out. One such reason is poor health, for example.

If both ex-partners own the property, one of the partners can take over the other's share. If this is not a solution for the ex-couple, the only option is usually to sell. A partition sale by the local court has more disadvantages for the owners and should be avoided.

Are you unsure what to do with your divorce property? Contact us! We will be happy to advise you.

 

Notes

For reasons of better readability, the generic masculine form is used in this text. Female and other gender identities are expressly included insofar as this is necessary for the statement.

Legal notice: This article does not constitute tax or legal advice in individual cases. Please have the facts of your specific case clarified by a lawyer and/or tax advisor.

Photo: © AndreyPopov/Depositphotos.com

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