Divorce & separation
What happens with a shared house or apartment on a divorce is dependent above all on two factors: the form of ownership and the marital property regime. The affordability of the mortgage is also an important consideration if a party wants to take over a property. Find out about the initial position early on. When selling a property after a divorce or separation, we will be here by your side with years of experience and tact.
Divorce and form of property ownership
First of all, the property could be owned solely by one of the spouses, in which case a divorce or separation will not change anything. However, an awarded right of residence (always time limited) can temporarily delay the sale. The second possibility is that the property is owned jointly by each spouse - often each owning a half. Thirdly, the property could be the common property of both spouse. This is the case when there is a simple partnership or joint estate.
What should you be aware of when considering the marital property regime?
In a divorce, the assets, including the property, will be divided depending on the marital property regime. A joint estate or separate estate are stipulated and governed within the marriage contract. The most common marital property regime however is the contribution to jointly acquired property. It applies when no other system has been agreed to and forms the basis of the division of marital property. Make sure that all evidence relating to the involvement of each party in financing the property are available.
Contribution to jointly acquired property
This marital property regime is valid if the spouses have not agreed to anything else. The estates remain separate. What they have contributed while married, inherited or received as a gift, is managed separately. Savings made during the marriage are used and managed independently. Spouses are only liable for their own debts with their own estate.
Joint Estate
Determined in the marriage contract. Besides the personal property of each spouse there is also the joint estate. It includes assets and income of both spouses and is managed jointly. In the case of debts, each partner is generally liable with half of the joint estate plus their own estate. On divorce the estate is divided.
Separate Estate
Also set out in the marriage contract and certified by a notary. Goods, assets and debts remain separated during the marriage, there is thus no division of the estate on divorce. This is the easiest situation when selling a property.
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Frequently asked questions (FAQs)
What happens to home ownership in a divorce?
If both partners agree to the divorce, they file a joint petition for divorce. Therein, they also make arrangements regarding the jointly owned residential property covering: who can continue to live in it, who assumes which costs and how ownership is split up if necessary.
What should property owners consider during the separation period?
Regardless of whether it is joint ownership or sole ownership, it is advantageous if both petitioners can agree as early as possible in the separation period who can stay in the property and how the costs will be split and managed. Normally, the partner who is adjudged to benefit more from the property is awarded the property. This is especially the case if one of the partners has custody of any children involved. This partner can also claim temporary right of residence after the divorce. Thus, if one partner disagrees, the sale of the property can be prevented for a prolonged period of time.
Who gets the property in the event of a dispute?
If an amicable separation agreement cannot be reached, the divorce settlement court shall decide on the allocation of the property in the case of joint ownership between both partners. In most cases, the partner that the children live with gets the house. However, the financing or mortgage must also be affordable for this partner.
How does it work if the property has to be split up in the divorce?
In order to divide ownership of a property in the event of a dispute, you need a professional valuation of the property. The involvement of an estate agent allows an impartial valuation to be carried out in the period before the divorce. The sale of the property also goes more smoothly if an estate agent handles it as an impartial third party.