In a marriage, if one person gets up on Sunday evening after an argument, leaves and says: “It’s over”, you are still married on Monday. You may then have marital problems or want to get a divorce, but nothing changes legally for the time being without further action. If the same thing happens in a partnership, you are no longer in a cohabitation on Monday. Marriage is a contract that is not open to dissolution. Cohabitation, on the other hand, is not. Many people decide that they don’t need a marriage certificate for their love and relationship, that they simply don’t want one. But what happens to the house or the flat bought together when you separate?
There are comprehensive legal regulations on how to proceed if one separates and divorces. There are laws that describe what is to be divided from the joint property, what is not to be divided and how it is to be divided. However, even though cohabitation is not a legal vacuum, there are few specific rules. The question that often remains after the end of a cohabitation is, who gets what?
HOUSE AND LAND – WHO GETS WHAT IN THE EVENT OF A SEPARATION?
The marital right of partition is not applied to cohabiting couples. This also makes sense in principle. It would be paternalism to impose on people the legal consequences of a (marriage) contract they never wanted to enter into. On the other hand, sometimes people who live in a partnership for a very long time wrongly assume that they have certain marriage-like rights anyway. This can lead to disappointment. What ultimately remains are the general rules of civil law.
- both partners are registered in the land register
If both partners are registered in the land register, they are legally classified as co-owners. This means that after a separation it can be decided by mutual agreement who is to own the property in the future and who is to pay the other person. This is sometimes difficult because one is dependent on an agreement. If an agreement cannot be reached, the competent courts have to be called upon, namely by means of an action for partition. This is often a lengthy and expensive procedure. If it is structurally possible, the house or flat can then either be divided for real, i.e. actually divided, or auctioned off. The proceeds of an auction are then divided proportionately.
- only one partner is registered in the land register
If only one person is registered in the land register of a property, but the other person has diligently paid along, bought the kitchen or financed the pool, the situation is even more difficult. Sometimes courts assume that the cohabitants have conclusively formed a company for the construction of the house. Under certain circumstances, a person who is not listed in the land register can also reclaim expenses made. In marriage, it’s not relevant who exactly bought which items. This is different in a life partnership. In a cohabitation relationship, it is precisely the question of who has paid something and with what money that matters. In any later proceedings, good documentation can be decisive.
Incidentally, in a cohabitation relationship, everyday expenses cannot be charged back afterwards. So, anyone who wants to offset the sausage sandwiches or Busticktes bought by the other person after a long-term relationship will get away empty-handed.
Tipp: PARTNERSHIP CONTRACT
If there is a contractual arrangement, e.g. in the form of a partnership agreement, the matter is clearer. Especially if a property is acquired together in a partnership, it is advisable to contractually secure a fair solution for both sides. Who is to take over the house or flat, how is one person to be paid out, etc.? In practice, such partnership contracts are rare so far.
It is considered unromantic to make a contract with your better half, whether you are married or not. However, it can make sense to agree on the division of assets when you understand each other well and not at a time when you might wish the other person would be sent into the inferno.
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