A separation is stressful enough, and the shared flat often makes it even harder. Whether you are allowed to stay and whether you still owe rent after moving out depends primarily on who is named on the tenancy agreement and whether you are married. This overview helps you to sort things out. It does not replace advice for your specific case.
First step: Who is named on the tenancy agreement?
First check the contract. Almost everything depends on that.
- One name on the contract: The contractual partner of the landlord is only this person. Anyone living there without their own contract derives their right of residence from them; when the relationship ends, this derived right generally also ends for cohabiting partners [S1]. The flat can then only be taken over by someone who agrees a separate contract with the landlord [S1].
- Two names on the contract: You are both liable for the rent. Moving out does not change that as long as the contract itself is not amended [S1].
The legal situation also differs according to whether you live in a cohabitation or are married / in a registered partnership.
Cohabitation: What you agreed counts
There are no specific tenancy-law rules for the separation of cohabiting partners [S1]. The assignment (cession) of the tenancy on moving out under § 12 MRG applies only to spouses, relatives in the direct line and siblings, not to cohabiting partners [S2].
For two tenants of whom only one wants to stay, there are two levels. Against the landlord only a changed contract helps, in which the person moving out is released [S1]. Between yourselves you can additionally agree from which month who pays and how the deposit and furniture are divided. However, this agreement only takes effect between the two of you: if the rent remains unpaid, the landlord may still turn to both of you, and the person who moved out must recover the money from the other themselves [S1].
Own tip: Already when you move in, record what should happen to the flat, the deposit and joint purchases in the event of a separation. A one-page note signed by both often suffices and saves a lot of dispute later.
Marriage and registered partnership: additional options
There are more statutory tools for married couples.
Assignment on moving out: If the flat falls within the full scope of application of the MRG and only the spouse who moves out is the principal tenant, they can assign their tenancy right to the other spouse. A prerequisite is a shared household in the flat for the last two years or since the marriage [S2]. Both must notify the landlord of the assignment without delay [S2]. § 12 MRG applies mutatis mutandis to registered partners [S7].
Division by the court: On divorce, annulment or declaration of nullity of a marriage the marital property for use is divided; the matrimonial home is expressly included [S3]. If a spouse brought the flat into the marriage, inherited it or received it as a gift, it is included only under certain conditions, for example if the other spouse or a common child is dependent on it [S8]. The court can order that one spouse enters into the legal relationship on which the use of the matrimonial home is based instead of the other, for example a tenancy agreement, or that one spouse continues the previously joint legal relationship alone. This is possible regardless of what the contract says [S4]. If someone enters a principal tenancy agreement in this way that already existed on 1 March 1994, the landlord may not raise the principal rent for that reason [S5].
Observe the deadline: The entitlement to division lapses if it is not asserted by agreement, settlement or court application within one year of the finality of the divorce, annulment or declaration of nullity [S6].
Whether and how the court assigns the flat depends greatly on the individual case. Seek advice from a family-law advisory service or a solicitor. Specific provisions apply on dissolution to registered partnerships, which you should also clarify in advice.
Getting out of the tenancy agreement: three routes and their risks
If you move out and want nothing more to do with the flat, roughly these routes are possible:
- Contract change with the landlord: You are released from the contract, the other person remains the sole tenant [S1]. This is the safest way because it also indemnifies you vis‑à‑vis the landlord.
- Assignment or court order: Spouses and registered partners can assign (Abtreten) [S2][S7]; the court allocation of the matrimonial home in a divorce is described above [S4]. Separate rules apply to the dissolution of a registered partnership.
- Internal agreement between you: It regulates who pays, but it does not protect you from the landlord continuing to demand payment from you [S1].
Own tips: Do not terminate prematurely on your own. Whether a termination by only one of two tenants is effective at all and what it means for the other person should be clarified beforehand at a tenants’ advice service or at the Arbeiterkammer. Always record agreements in writing, with the date and both signatures. Inform the landlord in writing when you move out and keep a copy.
Fictitious example: Two names on the contract, only one person stays
An unmarried couple jointly rented an apartment; both signed. After the separation he moves out, she stays. They agree in writing that she will pay the rent alone from the next month. The landlord initially refuses to change the contract. That means he remains a tenant even after moving out. If she falls into arrears with the rent, the landlord can also demand payment from him; he can only reclaim the money from her on the basis of the internal agreement [S1]. It would be sensible to speak to the landlord again later about a contract change, for example if she can prove that she is covering the rent on her own.