Who gets the apartment after a divorce


Lerato Khumalo

After the divorce, she stays in the marital home with the children, and he sues. The court makes a surprising decision. Who was right here?

If a spouse owns the marital home, he or she is entitled to it in the event of a divorce. Things may be different if the spouse and the children living there are faced with undue hardship due to a forced move out. The Family Law Working Group of the German Bar Association (DAV) points to a corresponding decision by the Higher Regional Court of Frankfurt/Main (case number: 6 UF 87/22).

In this specific case, a woman stayed in the marital home with her three children after the separation. However, the home was owned by the man alone. He claimed the apartment for himself – and was successful in court.

In principle, the ownership situation must be taken into account. Only in cases of hardship can the spouse demand that the spouse who owns the apartment hand it over, the court said.

There are high requirements for undue hardship. For example, the allocation of the apartment to the other spouse is only permissible in order to avoid an unbearable burden. This is the case, for example, if the ex-partner cannot find an apartment for themselves and the children. However, this is not the case here.

Although the woman claimed that it was impossible for her and the children to find alternative accommodation, she had made no effort to find an apartment at all.

Unlike the youth welfare office, the court believed that this would have been reasonable for her within two years of the separation. Her fear that a move could destabilize the children by causing them to lose social ties at school, in their circle of friends and in their club was also rather abstract.