The separation of spouses also involves a physical separation. In court, this is often referred to as separation “from table and bed.”
Only once this has occurred can a separation be considered valid in the legal sense.
As a rule, physical separation is also associated with moving out of the marital home.
If the spouses acquired a condominium or a house as a family home during their marriage, the following questions often arise when one spouse moves out and the other remains in the former family home:
- Who bears the financial burden?
- How does this affect any claims for spousal support?
- Must a fee for use be paid to the departing spouse, and if so, in what amount?
The answers to these questions depend on the specific circumstances of each case.
Clarify the Status Quo
First, the status quo must be clarified:
Are both spouses equal owners of the property, and did they establish it as joint ownership?
Has the use of the property as a marital home been (permanently) discontinued?
Typically, in this case, one spouse has moved out and “ceded” the former family home to the other spouse.
Request for Payment of Compensation for Use
In order to claim compensation for use as compensation for moving out and ceding the former family home, a clear demand for payment must be made to the other spouse.
It is therefore advisable to make the demand for compensation for use in writing and to specify the amount.
You can find a SAMPLE TEMPLATE FOR A DEMAND FOR COMPENSATION FOR USE on our website.
Amount of compensation for use
As a general rule, the amount of compensation for use to be paid is based on the rental value—that is, the local market rent that could be obtained for the property.
An exception to this principle may apply during the first year of separation if the conditions for a final separation and filing for divorce have not yet been met. In such cases, only the reasonable housing benefit of the spouse remaining in the property may be claimed, depending on the circumstances.
To determine the reasonable housing benefit, one must refer to the rent that the spouse remaining in the family home would have to pay for a correspondingly smaller apartment appropriate to the marital circumstances.
If the spouses cannot agree on who may continue to use the marital home, either spouse may, pursuant to § 1361b of the German Civil Code (BGB), demand that the marital home be assigned to them in whole or in part.
This may already occur if one of the spouses intends to separate from the other. The prerequisite is the avoidance of “undue hardship.”
Violence—both psychological and physical—generally indicates undue hardship, which may justify the assignment of a residence. If the well-being of the children living in the household is compromised by a serious disruption of family harmony—for example, due to severe and ongoing conflicts and a prevailing “climate of violence”—such an assignment is likely warranted.
The children’s need for an orderly, peaceful, and as relaxed as possible family environment takes precedence over the spouse’s interest in remaining in the marital home (see OLG Zelle, decision of Jan. 10, 2005, 10 UF 268/05).
With regard to the payment of compensation for use, the provision of § 1361b(3), second sentence, of the German Civil Code (BGB) takes precedence over § 745(2) BGB as the more specific rule when the marital home is jointly owned by the spouses (Higher Regional Court of Düsseldorf, November 7, 2018, Decision of Nov. 7, 2018 – 8 UF 35/18, and Federal Court of Justice (BGH), Decision of Feb. 22, 2017 – XII ZB 137/16).
Consideration of Expenses
If the spouse who has moved out bears the expenses of the property (for example, pays the interest and principal on the mortgage and the fixed utility costs), his or her claim for compensation for use is increased by a claim for proportional sharing of the expenses.
Housing Benefit During Separation
In the case of separation maintenance, the spouse who uses the family home rent-free is deemed to receive the so-called housing benefit as a benefit of use. Depending on whether it is separation maintenance or post-marital maintenance, this is based on the amount of rent saved or the objective rental value.
Do you have any questions about compensation for the use of the family home? Simply call us at 030 / 890644-0 or send us an email at [email protected] . We’d be happy to advise you on your case!
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