Only your name is in the land register. You want to sell the property and therefore assume that your marriage cannot have anything to do with the contract. For a person living under the statutory matrimonial property regime in Germany this conclusion is too quick. Ownership, matrimonial property regime (Güterstand) and a possible consent are different questions. They belong on the table before binding sale commitments.
Marriage does not automatically mean joint ownership
Under § 1363 BGB spouses generally live in a Zugewinngemeinschaft if they do not agree otherwise by marriage contract. Their respective assets are therefore not communal; this also applies to assets acquired during the marriage. § 1364 provides for independent management of assets, but at the same time refers to statutory restrictions. [GUETERSTAND] [VERWALTUNG]
The correct starting point is therefore neither “the spouse automatically owns half” nor “sole ownership always permits any sale without consultation”. First it must be established which matrimonial property regime actually exists. In the case of a marriage contract, foreign elements or unclear legal classification the relevant framework must be clarified separately. This article deals with the German statutory matrimonial property regime and not with foreign matrimonial property laws.
When a single house represents almost everything economically
§ 1365 BGB limits the obligation to dispose of the assets as a whole. The provision generally requires the consent of the other spouse for this. [VERMOEGEN] This can also be relevant for a single item: the BGH explains in the decision V ZB 15/12 that a transaction concerning an item can be covered if this item constitutes the whole or almost the whole of the assets. Added to that in this single-item constellation is the knowledge of the contracting partner described in the decision. [BGH]
This does not mean that every self-occupied house is automatically subject to a requirement for consent. Nor does a high sale price alone replace the need for examination. Which assets and burdens are to be classified how and what the other contracting party knows is assessed on the concrete facts. An alleged universal percentage formula from the internet is not sufficient for this.
What the BGH case actually concerns
The decision of 21 February 2013 concerned a transfer of land from a mother to her son and the question of whether the land registry office had to enter an official objection. It was not an ordinary sale to a stranger. The BGH distinguished the substantive requirement of consent from the concrete indications that the land registry office needs for an objection. [BGH]
From this follows neither a general prohibition of consent nor a recommendation to conceal family and asset circumstances. The decision explains why mere suppositions and blanket value statements do not justify every land register objection. For the preparation of a sale today a truthful clarification with the notary remains sensible.
Sort out the sale before the signing appointment
Our editorial recommendation: inform the notary early of marital status, known matrimonial property regime and the reason for the uncertainty. Provide the documents on the basis of which the concrete asset situation can be professionally assessed. A self-prepared asset overview is a working status for this purpose, not a binding legal finding.
Also clarify which declaration may be required in which form and who needs to be involved at the appointment. A familial agreement to move is not automatically the legally required consent to the specific transaction. Conversely, a mere organisational question should not be labelled a definitive spousal veto without examination.
Example: Not the land register, but an unresolved additional question delays the appointment
In the fictional case a female seller alone owns a house and intends to buy a smaller flat with the proceeds. Further asset relationships had not yet been discussed when scheduling the appointment. Only in the contract discussion did the possible significance of § 1365 arise.
The practical solution is not to quickly obtain an informal declaration from the spouse. The notary first clarifies the applicability and then the appropriate further arrangement. Earlier disclosure would have brought this examination forward of the already organised moving appointment. The example does not decide any obligation to consent and does not assert any particular waiting period.
Do not try to “repair” a missing consent yourself
For a contract concluded without the required consent § 1366 BGB contains rules on ratification and on the consequences of its refusal. [GENEHMIGUNG] From this does not follow any arbitrary subsequent deadline available for every real estate contract. If the contract has already been signed further declarations, deadlines and payments are coordinated with the notary or appropriate legal advice.
Early examination protects against a false certainty on both sides. Sole ownership remains sole ownership. Whether a specific restriction on disposal is added is nevertheless an independent question that a planned property sale must reliably answer.