FAMILY LAW
The house in a divorce in Cologne: your rights as an owner
In a separation the shared house is usually the largest item and the only one that cannot be halved. Who stays living there? Who pays the instalment? Who is entitled to the value, and how does one of you get out of the loan agreement? I am Dr Hanna Schmidt, attorney at law at DR. SCHMIDT LEGAL in Cologne, and I handle these questions myself.
The house in a divorce: use, ownership and the loan are three questions
The matrimonial home while living apart: section 1361b German Civil Code
Where the spouses live apart, or one of them wants to, that spouse can demand that the other leave them the matrimonial home or part of it for their sole use, so far as that is necessary to avoid unreasonable hardship (section 1361b German Civil Code). The welfare of children in the household can constitute such hardship.
The displaced spouse can demand payment for the use, so far as that is equitable. If a spouse moves out and does not indicate a serious intention to return within six months, it is irrebuttably presumed that they have left the sole right of use to the one who stayed. Anyone moving out to get some distance should record in writing beforehand that a return remains open.
On divorce: section 1568a German Civil Code
With the divorce a narrower rule applies. Someone who owns the land alone or together with a third party only has to hand over the home where that is necessary to avoid unreasonable hardship (section 1568a). The threshold is higher than while living apart, and it rises the clearer the ownership position is.
Where the property belongs to both in equal shares, the decision turns on what is equitable, taking the children's welfare and the parties' circumstances into account.
Ownership and the loan come apart
The bank is not bound by any arrangement between spouses. Whoever is named in the loan agreement remains a debtor, even after moving out and after the divorce, until the bank releases them or the agreement is changed. That is precisely why every property solution has to include the internal indemnity and, better still, the bank's written confirmation obtained in advance.
A land charge entered in the land register is, incidentally, no proof of an outstanding debt. Often the loan was repaid long ago and only the deletion was never applied for. Before any valuation the actual balance is obtained.
The equalisation of accrued gains bites at the cut-off date
Without a prenuptial agreement, spouses live in the community of accrued gains. The property itself is not divided. What is equalised is the growth during the marriage, in money. For the calculation, the point at which the divorce petition becomes pending takes the place of the end of the property regime (section 1384 German Civil Code). The cut-off date for final assets is therefore service of the petition.
How later changes in value, repayments and new liabilities are to be classified depends on why they arose and on the specific calculation. Knowing that calculation before filing the petition is why the order of steps carries so much weight in a separation involving property.
What makes the solution for the shared house expensive
01
Moving out without settling the consequences
Moving out does not end liability for the loan and can cost you the right of use within six months. First the written arrangement on use, costs and the intention to return, then the move.
02
Negotiating before the value is established
A buy-out is agreed because a figure was mentioned. Whoever pays or is paid out is often out by a five-figure sum, and correcting it after the notarial contract is practically hopeless. A reliable market value belongs at the beginning, not at the end.
03
Threatening a partition auction as the first move
An auction ends the co-ownership but rarely the conflict: the proceeds are often below the open-market price, the procedure costs money, and the proceeds still have to be divided afterwards. It is the last resort, once a buy-out and a sale have failed.
How I proceed
01
Recording the position
First the position goes on the table: the land register extract, loan agreements with the outstanding balance, how the property is currently used and who bears which costs, and for a flat the declaration of division.
02
Reviewing the options
Then I review the options: a buy-out by one spouse against compensation, a sale and division of the surplus, a time-limited arrangement for use, or as a last step a partition auction.
03
Obtaining the bank's confirmation
Where financing is needed, a firm commitment from the bank belongs in the calculation, not a statement of intent.
04
Recording the agreement
The results are recorded in an agreement that is enforceable, and notarially recorded where land is transferred.
A typical situation
01
The starting position
A terraced house in Cologne, both spouses on the loan agreement, the children stay with the mother, the father moves into a rented flat. He wants his share out, she wants to stay. The work starts here with three figures: the market value, the outstanding debt, and what the mother can carry each month.
02
The way through
Two realistic routes follow: she takes over against an equalisation payment, spread over time and with the bank's confirmation, or the house is sold and the surplus divided. Only once those points are settled is the divorce petition served, because the cut-off date for accrued gains should not fall in the middle of the solution.
The house in a divorce in Cologne: office and jurisdiction
My office is at Jakordenstrasse 8 in 50668 Cologne. For family matters in Cologne the family court at the Cologne Local Court decides, with appeals going to the Cologne Higher Regional Court. Which court has local jurisdiction, however, follows statutory rules and not simply where you live, which is why I clarify it before any petition.
If the property is not in Cologne, that changes nothing about how the matter is handled: the valuation, the bank and the notary appointment run where the house stands and where the loan agreement is held. Clients come from Cologne and the surrounding area, from Bergisch Gladbach, Leverkusen, Bruehl, Huerth, Frechen and Pulheim. I can also represent you throughout Germany, wherever the court happens to sit.
YOUR QUESTIONS
Frequently asked questions
Nobody has to leave automatically. Where the spouses are living apart, a spouse can demand the home where that is necessary to avoid unreasonable hardship, for instance because of the children (section 1361b German Civil Code). After the divorce the threshold under section 1568a is higher. Anyone who leaves and does not indicate a serious intention to return within six months loses the right of use irrebuttably.
That neither can decide about the house alone. Who stays living there does not follow from the land register but, while living apart, from section 1361b German Civil Code and, from the divorce onwards, from section 1568a. Co-ownership is dissolved in three ways: one takes over the other's share against an equalisation payment, both sell and divide the surplus, or it goes to a partition auction.
It starts with the market value. The outstanding loan balance is deducted, and what remains is the net value. Whoever takes over the other's share pays, as a starting point, that person's share of this net value. Then the real calculation begins: repayments after the separation, any outstanding compensation for use, and the question of how the result is reflected in the equalisation of accrued gains.
Compensation for use is possible. While living apart, the displaced owner can demand payment so far as that is equitable (section 1361b German Civil Code). The amount and due date are agreed or set by the court. Conversely: anyone using the home alone without an arrangement in place should expect a demand from the other side. Written arrangements before moving out save this dispute.
Nothing automatically. The bank relies on the contract, not on what the spouses agreed. Whoever co-signed remains a debtor until the bank releases them. An agreement therefore has to include the internal indemnity and the bank's written confirmation, obtained in advance, that it will accept the transfer. Without that confirmation the person who moved out continues to carry the risk, even if the house belongs to the other.
No, what is divided are the accrued gains, and in money. What counts is the value at the cut-off date, the point at which the divorce petition becomes pending (section 1384 German Civil Code). In practice there are three routes: one takes over and pays the other out, both sell and divide the surplus, or the property stays jointly owned for a limited period while children live in it. The bottleneck is almost always the financing, not the law.
I bill by time; my hourly rate is 280 euros plus 19% VAT, and the statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. You receive an invoice with a detailed record of the work done. Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee.
Order the property question before it dictates the separation
Bring what you have: the land register extract, the loan agreements, the arrangement for use so far. In the initial consultation we clarify which options are realistic in your situation and which step comes first. Appointments at Jakordenstrasse 8 in Cologne, by video or by phone.
FAMILY LAW
The house in a divorce in Cologne: your rights as an owner
In a separation the shared house is usually the largest item and the only one that cannot be halved. Who stays living there? Who pays the instalment? Who is entitled to the value, and how does one of you get out of the loan agreement? I am Dr Hanna Schmidt, attorney at law at DR. SCHMIDT LEGAL in Cologne, and I handle these questions myself.
The house in a divorce: use, ownership and the loan are three questions
The matrimonial home while living apart: section 1361b German Civil Code
Where the spouses live apart, or one of them wants to, that spouse can demand that the other leave them the matrimonial home or part of it for their sole use, so far as that is necessary to avoid unreasonable hardship (section 1361b German Civil Code). The welfare of children in the household can constitute such hardship.
The displaced spouse can demand payment for the use, so far as that is equitable. If a spouse moves out and does not indicate a serious intention to return within six months, it is irrebuttably presumed that they have left the sole right of use to the one who stayed. Anyone moving out to get some distance should record in writing beforehand that a return remains open.
On divorce: section 1568a German Civil Code
With the divorce a narrower rule applies. Someone who owns the land alone or together with a third party only has to hand over the home where that is necessary to avoid unreasonable hardship (section 1568a). The threshold is higher than while living apart, and it rises the clearer the ownership position is.
Where the property belongs to both in equal shares, the decision turns on what is equitable, taking the children's welfare and the parties' circumstances into account.
Ownership and the loan come apart
The bank is not bound by any arrangement between spouses. Whoever is named in the loan agreement remains a debtor, even after moving out and after the divorce, until the bank releases them or the agreement is changed. That is precisely why every property solution has to include the internal indemnity and, better still, the bank's written confirmation obtained in advance.
A land charge entered in the land register is, incidentally, no proof of an outstanding debt. Often the loan was repaid long ago and only the deletion was never applied for. Before any valuation the actual balance is obtained.
The equalisation of accrued gains bites at the cut-off date
Without a prenuptial agreement, spouses live in the community of accrued gains. The property itself is not divided. What is equalised is the growth during the marriage, in money. For the calculation, the point at which the divorce petition becomes pending takes the place of the end of the property regime (section 1384 German Civil Code). The cut-off date for final assets is therefore service of the petition.
How later changes in value, repayments and new liabilities are to be classified depends on why they arose and on the specific calculation. Knowing that calculation before filing the petition is why the order of steps carries so much weight in a separation involving property.
What makes the solution for the shared house expensive
01
Moving out without settling the consequences
Moving out does not end liability for the loan and can cost you the right of use within six months. First the written arrangement on use, costs and the intention to return, then the move.
02
Negotiating before the value is established
A buy-out is agreed because a figure was mentioned. Whoever pays or is paid out is often out by a five-figure sum, and correcting it after the notarial contract is practically hopeless. A reliable market value belongs at the beginning, not at the end.
03
Threatening a partition auction as the first move
An auction ends the co-ownership but rarely the conflict: the proceeds are often below the open-market price, the procedure costs money, and the proceeds still have to be divided afterwards. It is the last resort, once a buy-out and a sale have failed.
How I proceed
01
Recording the position
First the position goes on the table: the land register extract, loan agreements with the outstanding balance, how the property is currently used and who bears which costs, and for a flat the declaration of division.
02
Reviewing the options
Then I review the options: a buy-out by one spouse against compensation, a sale and division of the surplus, a time-limited arrangement for use, or as a last step a partition auction.
03
Obtaining the bank's confirmation
Where financing is needed, a firm commitment from the bank belongs in the calculation, not a statement of intent.
04
Recording the agreement
The results are recorded in an agreement that is enforceable, and notarially recorded where land is transferred.
A typical situation
01
The starting position
A terraced house in Cologne, both spouses on the loan agreement, the children stay with the mother, the father moves into a rented flat. He wants his share out, she wants to stay. The work starts here with three figures: the market value, the outstanding debt, and what the mother can carry each month.
02
The way through
Two realistic routes follow: she takes over against an equalisation payment, spread over time and with the bank's confirmation, or the house is sold and the surplus divided. Only once those points are settled is the divorce petition served, because the cut-off date for accrued gains should not fall in the middle of the solution.
The house in a divorce in Cologne: office and jurisdiction
My office is at Jakordenstrasse 8 in 50668 Cologne. For family matters in Cologne the family court at the Cologne Local Court decides, with appeals going to the Cologne Higher Regional Court. Which court has local jurisdiction, however, follows statutory rules and not simply where you live, which is why I clarify it before any petition.
If the property is not in Cologne, that changes nothing about how the matter is handled: the valuation, the bank and the notary appointment run where the house stands and where the loan agreement is held. Clients come from Cologne and the surrounding area, from Bergisch Gladbach, Leverkusen, Bruehl, Huerth, Frechen and Pulheim. I can also represent you throughout Germany, wherever the court happens to sit.
YOUR QUESTIONS
Frequently asked questions
Nobody has to leave automatically. Where the spouses are living apart, a spouse can demand the home where that is necessary to avoid unreasonable hardship, for instance because of the children (section 1361b German Civil Code). After the divorce the threshold under section 1568a is higher. Anyone who leaves and does not indicate a serious intention to return within six months loses the right of use irrebuttably.
That neither can decide about the house alone. Who stays living there does not follow from the land register but, while living apart, from section 1361b German Civil Code and, from the divorce onwards, from section 1568a. Co-ownership is dissolved in three ways: one takes over the other's share against an equalisation payment, both sell and divide the surplus, or it goes to a partition auction.
It starts with the market value. The outstanding loan balance is deducted, and what remains is the net value. Whoever takes over the other's share pays, as a starting point, that person's share of this net value. Then the real calculation begins: repayments after the separation, any outstanding compensation for use, and the question of how the result is reflected in the equalisation of accrued gains.
Compensation for use is possible. While living apart, the displaced owner can demand payment so far as that is equitable (section 1361b German Civil Code). The amount and due date are agreed or set by the court. Conversely: anyone using the home alone without an arrangement in place should expect a demand from the other side. Written arrangements before moving out save this dispute.
Nothing automatically. The bank relies on the contract, not on what the spouses agreed. Whoever co-signed remains a debtor until the bank releases them. An agreement therefore has to include the internal indemnity and the bank's written confirmation, obtained in advance, that it will accept the transfer. Without that confirmation the person who moved out continues to carry the risk, even if the house belongs to the other.
No, what is divided are the accrued gains, and in money. What counts is the value at the cut-off date, the point at which the divorce petition becomes pending (section 1384 German Civil Code). In practice there are three routes: one takes over and pays the other out, both sell and divide the surplus, or the property stays jointly owned for a limited period while children live in it. The bottleneck is almost always the financing, not the law.
I bill by time; my hourly rate is 280 euros plus 19% VAT, and the statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. You receive an invoice with a detailed record of the work done. Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee.
Order the property question before it dictates the separation
Bring what you have: the land register extract, the loan agreements, the arrangement for use so far. In the initial consultation we clarify which options are realistic in your situation and which step comes first. Appointments at Jakordenstrasse 8 in Cologne, by video or by phone.
FAMILY LAW
The house in a divorce in Cologne: your rights as an owner
In a separation the shared house is usually the largest item and the only one that cannot be halved. Who stays living there? Who pays the instalment? Who is entitled to the value, and how does one of you get out of the loan agreement? I am Dr Hanna Schmidt, attorney at law at DR. SCHMIDT LEGAL in Cologne, and I handle these questions myself.
The house in a divorce: use, ownership and the loan are three questions
The matrimonial home while living apart: section 1361b German Civil Code
Where the spouses live apart, or one of them wants to, that spouse can demand that the other leave them the matrimonial home or part of it for their sole use, so far as that is necessary to avoid unreasonable hardship (section 1361b German Civil Code). The welfare of children in the household can constitute such hardship.
The displaced spouse can demand payment for the use, so far as that is equitable. If a spouse moves out and does not indicate a serious intention to return within six months, it is irrebuttably presumed that they have left the sole right of use to the one who stayed. Anyone moving out to get some distance should record in writing beforehand that a return remains open.
On divorce: section 1568a German Civil Code
With the divorce a narrower rule applies. Someone who owns the land alone or together with a third party only has to hand over the home where that is necessary to avoid unreasonable hardship (section 1568a). The threshold is higher than while living apart, and it rises the clearer the ownership position is.
Where the property belongs to both in equal shares, the decision turns on what is equitable, taking the children's welfare and the parties' circumstances into account.
Ownership and the loan come apart
The bank is not bound by any arrangement between spouses. Whoever is named in the loan agreement remains a debtor, even after moving out and after the divorce, until the bank releases them or the agreement is changed. That is precisely why every property solution has to include the internal indemnity and, better still, the bank's written confirmation obtained in advance.
A land charge entered in the land register is, incidentally, no proof of an outstanding debt. Often the loan was repaid long ago and only the deletion was never applied for. Before any valuation the actual balance is obtained.
The equalisation of accrued gains bites at the cut-off date
Without a prenuptial agreement, spouses live in the community of accrued gains. The property itself is not divided. What is equalised is the growth during the marriage, in money. For the calculation, the point at which the divorce petition becomes pending takes the place of the end of the property regime (section 1384 German Civil Code). The cut-off date for final assets is therefore service of the petition.
How later changes in value, repayments and new liabilities are to be classified depends on why they arose and on the specific calculation. Knowing that calculation before filing the petition is why the order of steps carries so much weight in a separation involving property.
What makes the solution for the shared house expensive
01
Moving out without settling the consequences
Moving out does not end liability for the loan and can cost you the right of use within six months. First the written arrangement on use, costs and the intention to return, then the move.
02
Negotiating before the value is established
A buy-out is agreed because a figure was mentioned. Whoever pays or is paid out is often out by a five-figure sum, and correcting it after the notarial contract is practically hopeless. A reliable market value belongs at the beginning, not at the end.
03
Threatening a partition auction as the first move
An auction ends the co-ownership but rarely the conflict: the proceeds are often below the open-market price, the procedure costs money, and the proceeds still have to be divided afterwards. It is the last resort, once a buy-out and a sale have failed.
How I proceed
01
Recording the position
First the position goes on the table: the land register extract, loan agreements with the outstanding balance, how the property is currently used and who bears which costs, and for a flat the declaration of division.
02
Reviewing the options
Then I review the options: a buy-out by one spouse against compensation, a sale and division of the surplus, a time-limited arrangement for use, or as a last step a partition auction.
03
Obtaining the bank's confirmation
Where financing is needed, a firm commitment from the bank belongs in the calculation, not a statement of intent.
04
Recording the agreement
The results are recorded in an agreement that is enforceable, and notarially recorded where land is transferred.
A typical situation
01
The starting position
A terraced house in Cologne, both spouses on the loan agreement, the children stay with the mother, the father moves into a rented flat. He wants his share out, she wants to stay. The work starts here with three figures: the market value, the outstanding debt, and what the mother can carry each month.
02
The way through
Two realistic routes follow: she takes over against an equalisation payment, spread over time and with the bank's confirmation, or the house is sold and the surplus divided. Only once those points are settled is the divorce petition served, because the cut-off date for accrued gains should not fall in the middle of the solution.
The house in a divorce in Cologne: office and jurisdiction
My office is at Jakordenstrasse 8 in 50668 Cologne. For family matters in Cologne the family court at the Cologne Local Court decides, with appeals going to the Cologne Higher Regional Court. Which court has local jurisdiction, however, follows statutory rules and not simply where you live, which is why I clarify it before any petition.
If the property is not in Cologne, that changes nothing about how the matter is handled: the valuation, the bank and the notary appointment run where the house stands and where the loan agreement is held. Clients come from Cologne and the surrounding area, from Bergisch Gladbach, Leverkusen, Bruehl, Huerth, Frechen and Pulheim. I can also represent you throughout Germany, wherever the court happens to sit.
YOUR QUESTIONS
Frequently asked questions
Nobody has to leave automatically. Where the spouses are living apart, a spouse can demand the home where that is necessary to avoid unreasonable hardship, for instance because of the children (section 1361b German Civil Code). After the divorce the threshold under section 1568a is higher. Anyone who leaves and does not indicate a serious intention to return within six months loses the right of use irrebuttably.
That neither can decide about the house alone. Who stays living there does not follow from the land register but, while living apart, from section 1361b German Civil Code and, from the divorce onwards, from section 1568a. Co-ownership is dissolved in three ways: one takes over the other's share against an equalisation payment, both sell and divide the surplus, or it goes to a partition auction.
It starts with the market value. The outstanding loan balance is deducted, and what remains is the net value. Whoever takes over the other's share pays, as a starting point, that person's share of this net value. Then the real calculation begins: repayments after the separation, any outstanding compensation for use, and the question of how the result is reflected in the equalisation of accrued gains.
Compensation for use is possible. While living apart, the displaced owner can demand payment so far as that is equitable (section 1361b German Civil Code). The amount and due date are agreed or set by the court. Conversely: anyone using the home alone without an arrangement in place should expect a demand from the other side. Written arrangements before moving out save this dispute.
Nothing automatically. The bank relies on the contract, not on what the spouses agreed. Whoever co-signed remains a debtor until the bank releases them. An agreement therefore has to include the internal indemnity and the bank's written confirmation, obtained in advance, that it will accept the transfer. Without that confirmation the person who moved out continues to carry the risk, even if the house belongs to the other.
No, what is divided are the accrued gains, and in money. What counts is the value at the cut-off date, the point at which the divorce petition becomes pending (section 1384 German Civil Code). In practice there are three routes: one takes over and pays the other out, both sell and divide the surplus, or the property stays jointly owned for a limited period while children live in it. The bottleneck is almost always the financing, not the law.
I bill by time; my hourly rate is 280 euros plus 19% VAT, and the statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. You receive an invoice with a detailed record of the work done. Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee.
Order the property question before it dictates the separation
Bring what you have: the land register extract, the loan agreements, the arrangement for use so far. In the initial consultation we clarify which options are realistic in your situation and which step comes first. Appointments at Jakordenstrasse 8 in Cologne, by video or by phone.