The marital home at separation: who may stay in the home?

Who may stay in the shared home after the separation is often a point of dispute. As long as you are still married, the marital home can be assigned to one spouse for sole use if that is necessary to avoid an unfair hardship, in case of violence even as a priority for protection.

Reach your next steps and the matching ready-made texts in just a few minutes, free of charge:

Check your right to a lawyer →

Your chances of getting your money back

During the period of living apart, a spouse can demand that the marital home be left to them alone, insofar as that is necessary to avoid an unfair hardship (§ 1361b BGB), regardless of the ownership situation.

In case of violence or threats, protection is the priority: the home can be assigned to the victim. The welfare of the children living in the household must be given particular consideration.

What you should do now

1
1. Assess the situation
Clarify whether living together is reasonable or whether a separation of the living areas or sole use is necessary.
2
2. Justify hardship/protection
In case of violence, threats, or to protect the children, the assignment of the home can be applied for, document the grounds.
3
3. Consider moving out
A voluntary move-out can have consequences (e.g. for later use). Do not make hasty decisions without advice.
4
4. Call on the court
If no agreement is reached, the family court decides on the assignment of the home, in case of violence also in urgent proceedings.

How to spot the scam

One partner locks the other out on their own.
In case of violence, no protection is sought through the assignment of the home.
A hasty move-out weakens your own position.

Frequently asked questions

Who may stay in the home after the separation?

That depends on the individual case. The marital home can be assigned to one spouse for sole use if that is necessary to avoid an unfair hardship (§ 1361b BGB). During the marriage, the ownership situation is initially not decisive.

What applies in case of violence?

Then protection is the priority. The home can be assigned to the victim, also in urgent proceedings, and the perpetrator can be prohibited from using it. The children's welfare is given particular consideration.

Should I move out?

Consider it carefully. A voluntary move-out can weaken your position in the dispute over the home. Do not make a hasty decision and get advice beforehand, unless it is about your protection, then safety takes priority.

Take action now

We put together the ready-made texts and the right places to contact for you.

Check your right to a lawyer Check a suspicious message

More help: Emergency by phone · Act together · Right to a lawyer · All guides

General information for self-help, not legal advice (RDG). In case of a high loss or uncertainty: contact a consumer advice center or a lawyer.