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House on separation: co-ownership in fractional shares and accrued gains

If the house belongs to both of you, two sets of rules apply side by side: co-ownership and the equalisation of accrued gains. We show how they interact and how the payout is calculated.

Legal guide9 min read

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As of: 20 October 2026

In short. If both of you are in the land register (Grundbuch), there is generally co-ownership in fractional shares (§ 741 BGB (German Civil Code)). Any co-owner can demand at any time that it be dissolved (§ 749 para. 1 BGB). The equalisation of accrued gains is separate from this: it is a monetary claim based on the total assets of both spouses on a cut-off date, not on the house alone. Whoever wants to keep the house buys the other's share and needs a notary and a bank for that. Without agreement, what remains is a joint sale or, in the end, a compulsory auction. Legal advice belongs before any signature.

What is co-ownership in fractional shares?

If a right belongs to several people jointly, the rules on co-ownership in fractional shares apply (§ 741 BGB (German Civil Code)). For a house, these are the owners in the land register (Grundbuch). In case of doubt, they hold equal shares (§ 742 BGB). Whether that is so is shown by the land register extract. Our article on property in a divorce explains who owns the house.

For everyday life in the co-ownership, the law says:

  • Disposal: Each may dispose of their own share, but of the house as a whole only both together (§ 747 BGB).
  • Management: It belongs to the co-owners jointly; each may take necessary maintenance measures alone (§ 744 BGB). Majority decisions count by the size of the shares (§ 745 para. 1 BGB).
  • Costs: The co-owners bear charges and maintenance costs in proportion to their shares (§ 748 BGB).
  • Exit: Anyone can demand dissolution at any time (§ 749 para. 1 BGB). Even a contractual exclusion helps only to a limited extent: for good cause, dissolution remains possible (§ 749 para. 2 BGB).

Dissolution takes place by physical division if the house can be split into equal parts without loss of value (§ 752 BGB). For a detached house that is usually not the case. For land, a compulsory auction and division of the proceeds then follow (§ 753 para. 1 BGB). An agreement is almost always better.

How does the equalisation of accrued gains affect the house?

Without a marriage contract, spouses live in a community of accrued gains (§ 1363 para. 1 BGB (German Civil Code)). This does not make their assets joint. Only at the end are the accrued gains equalised (§ 1363 para. 2 BGB). The house still belongs to them according to the fractional shares in the land register (Grundbuch), alongside a purely monetary calculation.

The calculation at a glance:

  1. Accrued gains are the amount by which a spouse's final assets exceed their initial assets (§ 1373 BGB (German Civil Code)). Liabilities are deducted (§ 1374 para. 1, § 1375 para. 1 BGB).
  2. If a spouse inherited the house or the share, or received it as a gift, it is added to the initial assets (§ 1374 para. 2 BGB (German Civil Code)), at its value at the time of acquisition (§ 1376 para. 1 BGB).
  3. The final assets are valued as at the cut-off date (§ 1376 para. 2 BGB (German Civil Code)). In a divorce, that is the time the divorce petition becomes pending (§ 1384 BGB).
  4. If one spouse's accrued gains exceed the other's, the other is entitled to half of the surplus as an equalisation claim (§ 1378 para. 1 BGB (German Civil Code)). It is limited by the assets that exist (§ 1378 para. 2 BGB).

The difference between the dates matters. For the accrued gains, the value of the house on the cut-off date counts. Whatever the house gains or loses afterwards does not change the equalisation claim. The price at which one party later takes over the other's share, by contrast, depends on the value at the time of the takeover. After the separation you can demand information on assets at the time of separation (§ 1379 para. 2 BGB (German Civil Code)), and after the divorce petition also on initial and final assets, each with supporting documents on request (§ 1379 para. 1 BGB).

Who can keep the house, and how is the other party paid out?

The usual solution is a takeover against payment: one party buys the other's share. Legally, this is a land purchase contract for the co-ownership share. It requires notarisation (§ 311b para. 1 BGB (German Civil Code)), and ownership passes only with the entry in the land register (Grundbuch) (§ 873 para. 1 BGB).

A worked example with freely chosen assumptions that only shows how the calculation works:

  • Assumptions: The house is worth €600,000, and €200,000 is still outstanding on the loan. Both spouses are registered for half each, and neither had any assets at the time of marriage. On the cut-off date, partner A has €150,000 in savings besides the share in the house, partner B has €20,000.
  • Takeover price: net value of the house €600,000 less €200,000 loan = €400,000, half of it = €200,000 for B's share. A also takes over half of the loan that B carried until now.
  • Accrued gains: final assets of A = €200,000 + €150,000 = €350,000, final assets of B = €200,000 + €20,000 = €220,000. Surplus €130,000, half of it = €65,000 equalisation claim of B against A.
  • Overall picture: If A takes over the house, A pays €200,000 for the share and owes €65,000 in equalisation. How the two amounts are offset is set out in the contract. In the example, the cut-off-date value and the takeover value are simplified as equal.

If the means are not enough, the law offers two forms of help. The family court defers the equalisation claim on application, as far as the claim is undisputed and immediate payment would come at an inopportune time, subject to interest (§ 1382 BGB (German Civil Code)). Conversely, the person entitled to equalisation can apply to have certain assets from the debtor's estate transferred to them instead of money, for example the debtor's share in the house. The family court orders this only if otherwise gross unfairness would arise for the creditor and it is reasonable for the debtor (§ 1383 para. 1 BGB). If you want to stay in the home without taking it over, check with legal help whether the rules on the marital home (§ 1568a BGB) apply.

An agreement on accrued gains that spouses make during divorce proceedings requires notarisation (§ 1378 para. 3 BGB (German Civil Code)). Real estate transfer tax (Grunderwerbsteuer) is not due on acquisition by the spouse and, in the course of the division of property after the divorce, by the former spouse (§ 3 no. 4 and 5 GrEStG (Real Estate Transfer Tax Act)). Income tax on the sale of a share is a matter for your tax adviser.

What happens to the loan and the land charge?

This is where takeovers most often stall. The bank has usually had a land charge entered in the land register (Grundbuch). The purchase of the share changes nothing about that. Whoever takes over must clarify with the bank whether the other party is released from the contract. For this the bank generally checks whether the person taking over can carry the repayments alone.

If the partner is not released, they remain obliged to the bank even though the house no longer belongs to them. Between the two of you, equal shares apply in principle for the settlement, unless otherwise agreed (§ 426 para. 1 BGB (German Civil Code)). An express provision therefore belongs in the takeover contract. If the loan continues, the land charge also remains. If it is repaid early, an early repayment penalty may arise, which we explain in the article on the early repayment penalty.

When is a sale to a third party the better solution?

If neither of you can or wants to finance the house alone, a joint sale remains. It requires both to cooperate (§ 747 BGB (German Civil Code)). The loan is repaid first from the purchase price, and you split the rest according to your shares. The accrued gains are calculated separately.

A spouse can commit to disposing of their assets as a whole only with the other's consent (§ 1365 para. 1 BGB (German Civil Code)). Whether this applies, for example because the house makes up almost all of their assets, is for your lawyer to clarify. We work out the market value as a common basis with you using the suitable valuation method. The first steps are described in the article Selling a property in Berlin. A neutral market value assessment also helps in the negotiation over the takeover.

If every attempt at agreement fails, any co-owner can pursue a compulsory auction to dissolve the co-ownership. Any co-owner can apply for a temporary stay of up to six months, repeatable once (§ 180 para. 2 ZVG (Compulsory Auctions Act)). For spouses, a further stay is possible if necessary to protect the welfare of a joint child from serious harm (§ 180 para. 3 ZVG). All stays together may not exceed five years (§ 180 para. 4 ZVG). Which routes are open beforehand is shown in the guide Avoiding a partition auction.

What should you clarify before the first meeting?

  1. Get a land register extract (Grundbuch). It shows the shares and all registered rights.
  2. Clarify the cut-off date and assets. Ask for the exact day and request the information under § 1379 BGB (German Civil Code).
  3. Determine the market value. Our property valuation is a first step. Papers: Documents for selling a property.
  4. Ask about the loan status. Have the outstanding balance, the fixed-rate period and the conditions of a release stated in writing.
  5. Get legal advice. Legal advice is no luxury in a separation, because cut-off dates and deadlines decide a lot of money.

Get in touch via the contact page. We value the house and work through a sale with you alongside the takeover.

Legal notice. This article reflects the position as of 20 October 2026 and is intended for initial orientation. It does not replace legal or tax advice in the individual case. As estate agents we may not and do not wish to provide legal advice. For binding information, please contact a lawyer, a notary's office or a tax adviser.

Sources

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Frequently asked questions

House on separation: frequently asked questions.

Answers as of: 20 October 2026

Do I own half the house if we are both in the land register (Grundbuch)?

In case of doubt, yes, as the law assumes equal shares (§ 742 BGB (German Civil Code)). The land register shows whether other fractional shares are entered, such as two thirds to one third. What counts is what is entered there.

Can my spouse sell the whole house alone?

No. Each owner may dispose of their own share alone, but of the house as a whole only both together (§ 747 BGB (German Civil Code)). Selling one's share alone is possible but difficult, because the buyer would then share the house with the other owner.

Which cut-off date applies to the accrued gains?

In a divorce, the point at which the divorce petition becomes pending (§ 1384 BGB (German Civil Code)). For early equalisation, for example after three years of separation (§ 1385 BGB), the day the application is filed applies (§ 1387 BGB).

Does an inherited or gifted house count towards the accrued gains?

It is added to the initial assets, at its value at the time of acquisition (§ 1374 para. 2, § 1376 para. 1 BGB (German Civil Code)). What counts in the accrued gains is then essentially the increase in value since acquisition; case law adjusts the initial assets for the loss of purchasing power, so a purely inflation-driven rise in value is not an accrued gain.

Do I have to pay an equalisation claim immediately?

Not in every case. The family court defers it on application if immediate payment would come at an inopportune time. Deferred claims bear interest (§ 1382 BGB (German Civil Code)).

Can a court award me the house?

Only within narrow limits. If you are owed an equalisation claim, the family court can, on your application, order the other party to transfer certain assets to you, credited against the claim, if that avoids gross unfairness to you and is reasonable for them (§ 1383 para. 1 and 2 BGB (German Civil Code)).

Is real estate transfer tax due if one party takes over the other's share?

The law exempts the acquisition of land by the spouse and, in the course of the division of property after the divorce, by the former spouse from real estate transfer tax (Grunderwerbsteuer) (§ 3 no. 4 and 5 GrEStG (Real Estate Transfer Tax Act)). For income tax, ask your tax adviser.

Am I automatically released from the loan after the takeover?

No. The loan agreement with the bank changes neither through the divorce nor through the purchase of the share. The bank must expressly declare the release (§§ 414, 415 BGB (German Civil Code)). If both signed the agreement and this declaration is missing, both remain liable, between themselves in principle in equal shares (§ 426 para. 1 BGB).

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What really helps at this point.

Property in a divorceFour routes for the shared house. Avoiding a partition auctionHow the auction can be averted. Early repayment penaltyWhat the bank charges for early repayment.

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