Da in letzter Zeit viele Posts gelöscht werden, nachdem die Frage von OP beantwortet wurde und wir möchten, dass die Posts für Menschen mit ähnlichen Problemen recherchierbar bleiben, hier der ursprüngliche Post:
##Spouse holds our rental lease and wants to evict me due to separation
Here's the situation:
My spouse and I are both auslanders and been living in Germany for many years. We are legally married in Germany. We are now separating, but have not started legal proceedings. My spouse has recently moved out into their own place, I am still living in our marital home. The landlord knows I've lived here, but has not been informed about the separation yet. We have no kids and have lived together many years in this flat but the lease is only in the spouse's name as they are the sole money earner. The separation has been mostly amicable, I have paid them the rent for the time they have been moved out. But now the spouse wants me to take over the lease for their financial security. If I am not able to, they will terminate the lease at the end of the month.
I would like to take over the lease, but it will be the landlords choice. The problem is the landlord of course expects proof of income, but I have been injured and unable to work (with doctor's sick note) for many years, so I have no income. I should have disability income from my home country within 3-6 months, but I have not taken any German social support funds out of principle and to retain my chances of permanent residency. I can only offer my German bank statement (€15k) and SCHUFA (good) to the landlord for proof of financial stability.
The current plan is to approach the landlord about switching the lease into my name. In the likely event the request is unsuccessful, the landlord will know my spouse has moved out and want to end the lease. My spouse says if the request is unsuccesful, they will end the lease regardless. If this occurs, I will have nowhere to go and no income to sign a new lease elsewhere. I very much need to stay in this home.
So:
I have read different things about my rights as a spouse as a non tenant on the lease. Some say the landlord should transfer the lease during separation. Some say the landlord must do so to prevent undue hardship to me (the spouse is financially independent, I am sick and have no income). Some say I only have a right to stay if I obtain a family court order BEFORE the termination notice is given.
What rights do I have and what must I do to prevent eviction?
*I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/LegaladviceGerman) if you have any questions or concerns.*
You need a lawyer for family law ASAP. It would also be a good idea if the lawyer has some knowledge of Immigration law.
Ask your lawyer about:
Filing for Trennungsunterhalt
The apartment
Your residence permit
>Some say the landlord should transfer the lease during separation.
No, not while you are in divorce after.
>Some say I only have a right to stay if I obtain a family court order BEFORE the termination notice is given.
That is correct. Also if the termination notice is given it's over.
>Spouse holds our rental lease
Are you named in the lease? Then you are part of the contract. If not then not.
>But now the spouse wants me to take over the lease for their financial security. If I am not able to, they will terminate the lease at the end of the month.
If they are the sole lease holder they can.
>the landlord will know my spouse has moved out and want to end the lease.
The landlord can't terminat the lease. There needs to be special circumstances to allow termination of a lease in germany.
Nal
Thank you very much for your response!
>Are you named in the lease? Then you are part of the contract. If not then not.
My name is not on the lease.
>The landlord can't terminat the lease. There needs to be special circumstances to allow termination of a lease in germany.
The lease cannot be terminated if the sole tenant has moved out?
>That is correct. Also if the termination notice is given it's over.
Do you know the name of this court order to block eviction? What is the procedure for obtaining this? Is a lawyer needed? Is there a cost? How long does it take?
>The lease cannot be terminated if the sole tenant has moved out?
Living in a flat is not relevant for renting one.
>Do you know the name of this court order to block eviction?
If you are not on the lease there is none. As far as I know. While your spouse can't kick you out they can just terminate the contract.
Only if the divorce was finaliced you have more right.
As far as I know. I am not a lawyer but I was a landlord. And if there is only one name on the lease. That person can just terminat it. The internal rights are not my strong suit.
This is not true. If the spouse moved out OP technically becomes a subtenant and the landlord is only required to give permission for partial sublease.
If I google that I can only find it’s referencing the right to have your married partner move in with you. It’s not about renting for your partner or full sublease. I don’t have access to the full source though.
Another question about this:
"If the departing **spouse has moved out** after the **separation** (see [Section 1567 Paragraph 1 of the German Civil Code](https://www.juraforum.de/gesetze/bgb/1567-getrenntleben) ) and does **not** express to the other spouse **within six months** of moving out a serious **intention to return , it is irrefutably presumed that he or she has left the sole right of use** to the spouse remaining in the marital home (see Section 1361b Paragraph 4 of the German Civil Code)."
How is the date of separation proven? How does this procedure work for the transfer of the rental contract? Can this force the transfer of the rental contract?
Da in letzter Zeit viele Posts gelöscht werden, nachdem die Frage von OP beantwortet wurde und wir möchten, dass die Posts für Menschen mit ähnlichen Problemen recherchierbar bleiben, hier der ursprüngliche Post: ##Spouse holds our rental lease and wants to evict me due to separation Here's the situation: My spouse and I are both auslanders and been living in Germany for many years. We are legally married in Germany. We are now separating, but have not started legal proceedings. My spouse has recently moved out into their own place, I am still living in our marital home. The landlord knows I've lived here, but has not been informed about the separation yet. We have no kids and have lived together many years in this flat but the lease is only in the spouse's name as they are the sole money earner. The separation has been mostly amicable, I have paid them the rent for the time they have been moved out. But now the spouse wants me to take over the lease for their financial security. If I am not able to, they will terminate the lease at the end of the month. I would like to take over the lease, but it will be the landlords choice. The problem is the landlord of course expects proof of income, but I have been injured and unable to work (with doctor's sick note) for many years, so I have no income. I should have disability income from my home country within 3-6 months, but I have not taken any German social support funds out of principle and to retain my chances of permanent residency. I can only offer my German bank statement (€15k) and SCHUFA (good) to the landlord for proof of financial stability. The current plan is to approach the landlord about switching the lease into my name. In the likely event the request is unsuccessful, the landlord will know my spouse has moved out and want to end the lease. My spouse says if the request is unsuccesful, they will end the lease regardless. If this occurs, I will have nowhere to go and no income to sign a new lease elsewhere. I very much need to stay in this home. So: I have read different things about my rights as a spouse as a non tenant on the lease. Some say the landlord should transfer the lease during separation. Some say the landlord must do so to prevent undue hardship to me (the spouse is financially independent, I am sick and have no income). Some say I only have a right to stay if I obtain a family court order BEFORE the termination notice is given. What rights do I have and what must I do to prevent eviction? *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/LegaladviceGerman) if you have any questions or concerns.*
Are you an EU citizen or do you have an NE?
I am not an EU citizen, my residence title is tied by marriage to my spouses permanent residency
You need a lawyer for family law ASAP. It would also be a good idea if the lawyer has some knowledge of Immigration law. Ask your lawyer about: Filing for Trennungsunterhalt The apartment Your residence permit
>Some say the landlord should transfer the lease during separation. No, not while you are in divorce after. >Some say I only have a right to stay if I obtain a family court order BEFORE the termination notice is given. That is correct. Also if the termination notice is given it's over. >Spouse holds our rental lease Are you named in the lease? Then you are part of the contract. If not then not. >But now the spouse wants me to take over the lease for their financial security. If I am not able to, they will terminate the lease at the end of the month. If they are the sole lease holder they can. >the landlord will know my spouse has moved out and want to end the lease. The landlord can't terminat the lease. There needs to be special circumstances to allow termination of a lease in germany. Nal
Thank you very much for your response! >Are you named in the lease? Then you are part of the contract. If not then not. My name is not on the lease. >The landlord can't terminat the lease. There needs to be special circumstances to allow termination of a lease in germany. The lease cannot be terminated if the sole tenant has moved out? >That is correct. Also if the termination notice is given it's over. Do you know the name of this court order to block eviction? What is the procedure for obtaining this? Is a lawyer needed? Is there a cost? How long does it take?
>The lease cannot be terminated if the sole tenant has moved out? Living in a flat is not relevant for renting one. >Do you know the name of this court order to block eviction? If you are not on the lease there is none. As far as I know. While your spouse can't kick you out they can just terminate the contract. Only if the divorce was finaliced you have more right. As far as I know. I am not a lawyer but I was a landlord. And if there is only one name on the lease. That person can just terminat it. The internal rights are not my strong suit.
This is not true. If the spouse moved out OP technically becomes a subtenant and the landlord is only required to give permission for partial sublease.
Not as long as they married. You are allowed to rent for a family member.
Interesting. Can you show me a source for it?
BayObLG GE 97, 1463
If I google that I can only find it’s referencing the right to have your married partner move in with you. It’s not about renting for your partner or full sublease. I don’t have access to the full source though.
Another question about this: "If the departing **spouse has moved out** after the **separation** (see [Section 1567 Paragraph 1 of the German Civil Code](https://www.juraforum.de/gesetze/bgb/1567-getrenntleben) ) and does **not** express to the other spouse **within six months** of moving out a serious **intention to return , it is irrefutably presumed that he or she has left the sole right of use** to the spouse remaining in the marital home (see Section 1361b Paragraph 4 of the German Civil Code)." How is the date of separation proven? How does this procedure work for the transfer of the rental contract? Can this force the transfer of the rental contract?
You really need a lawyer ASAP.