If a married couple separates and not the owner, but the other partner remains in the property, he or she must apply for the transfer of the property within one year. This was decided by the Federal Court of Justice (BGH; XII ZB 243/20). In the case at hand, a married couple separated in 2014, the divorce followed in 2015. Since the separation, the wife used the apartment, which belonged to her husband, alone. In 2016, she transferred an apartment in the same house, which belonged to her, to her son free of charge.
The woman did not assert any claims to the apartment in which she lived. In addition, she did not pay her husband rent or other costs - not even after his requests for payment. In addition, she did not hand over the apartment to him. The husband then filed an application for eviction and restitution with the district court. With success. However, the woman did not accept this and then appealed first to the Higher Regional Court, which rejected the complaint, and then to the Federal Court of Justice. But the court also ruled in favor of the man.
One of the reasons given for the decision is that the blocking effect is limited in time by Section 1568 a (6) of the German Civil Code (BGB). Although this does not specify any regulations on the transfer, it does state that "the claim to enter into a tenancy or to establish it [expires] one year after the final decision in the divorce case has become final if it has not been made legally pending beforehand".
Source: BGH (XII ZB 243/20)
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