What is it about?
When a joint property is sold in the context of a separation or divorce, several additional documents are required beyond the normal sales documents. The reason is simple: it is not only about the sale itself, but also who is authorised to dispose of the property, how the proceeds are divided, and whether both spouses agree to the sale. As long as these questions are not properly documented, the notary cannot effectively notarise the contract.
In practice, the most common hurdle is not the land register, but communication between the separated partners. Almost always, both spouses are jointly registered in the land register – and then both must sign the purchase agreement or be effectively represented. Without a clear regulation of who is allowed to do what, the sale stalls. This guide shows which additional documents are required, who signs them, when a power of attorney suffices, and how we neutrally coordinate the process even in tense situations.
Important in advance: We are real estate agents, not legal or tax advisors. Especially in divorces, family law, matrimonial property law, and tax law issues intertwine (e.g., capital gains tax on property if sold within ten years). We structure the sale and document procurement but work closely with your lawyers, the notary, and your bank.
Definition and meaning
The sale of a property in a divorce is not a separate contract type, but a normal property purchase agreement with additional family law and matrimonial property law frameworks. These frameworks create the additional need for documents: proof of marital status, agreements on the distribution of proceeds, and – if one acts alone – powers of attorney.
Central is the matrimonial property regime (Güterstand). Without a marriage contract, spouses in Germany live under the statutory matrimonial property regime of community of accrued gains (Zugewinngemeinschaft). This does not automatically lead to joint ownership – the entry in the land register is decisive. If both are registered, the property belongs to both; if only one is registered, it generally belongs to them alone – with the important exception of § 1365 BGB (disposition of substantial assets).
The divorce settlement agreement and the equalisation of accrued gains are the instruments used to regulate the financial consequences. They determine how the sales proceeds are distributed between the partners after repayment of the loans.
Why it matters
Without clarified authority to dispose, the notary cannot notarise. If both spouses are owners, both must agree; if only one wishes to handle the sale, they need a notarially certified power of attorney from the other. If it is missing, the appointment fails.
Without a regulation for the distribution of proceeds, there is a risk of dispute over every Euro. A divorce settlement or equalisation of accrued gains agreement creates clarity in advance and prevents the notary from being unable to pay out the proceeds because the parties are in disagreement.
§ 1365 BGB is a real trap: Even if only one spouse is registered in the land register, they cannot sell the property without the consent of the other if it represents virtually their entire assets. If this is overlooked, the purchase agreement is provisionally invalid (schwebend unwirksam).
The key sections
You should know and check these components:
Land register extract with ownership shares.
Shows whether both spouses are registered (and in what proportion, e.g., "half each"). It is the basis for the question of who must sign.
Power of attorney from the other spouse
If only one is to handle the sale: a notarially certified power of attorney that covers the sale of the specific property, the purchase price range, and the declarations of execution.
Divorce settlement agreement
Notarially certified agreement on the consequences of divorce, especially regarding the handling of the property and the distribution of the proceeds.
Equalisation of accrued gains or separation agreement
Regulates the equalisation of accrued gains during the marriage or the handling during the separation phase – important for the specific division of the sale proceeds.
Marriage contract (if available)
May alter the statutory matrimonial property regime (e.g., separation of property) and thus the division. Must be presented to the notary.
Divorce decree (if already legally binding)
The family court decree confirms the marital status. It is not mandatory for the sale itself, but often relevant for the distribution of proceeds.
Example
Divorce sale – the crucial points
A separated couple owns a shared apartment. Only one partner is dealing with the sale, while the other now lives abroad. This is the documentary starting point – and this is what needs to be clarified.
Land Register (Grundbuch) Section I
Anna and Ben Example, half each
Both are owners. Without the cooperation or effective representation of both individuals, the property cannot be sold.
Acting person
only Anna on site, Ben abroad
For Anna to go to the notary alone, she needs a notarially certified power of attorney from Ben – an informal declaration or email is not sufficient.
Distribution of proceeds
open / disputed
Without a divorce settlement or equalisation of accrued gains agreement, the notary cannot unambiguously disburse the proceeds after the bank has been paid off.
§ 1365 BGB
Property is substantial asset
Even if only one were registered, the consent of the other would be required – a frequently overlooked point.
Speculation period
Purchase 6 years ago
A sale within the ten-year period can trigger speculation tax – this should be clarified with a tax advisor before the sale.
Who signs? Can a power of attorney be enough?
Responsibility and signature
In principle, both spouses registered in the land register must participate in the sale. The procurement of additional documents (land register, powers of attorney, agreements) is coordinated by the spouses, their lawyers, and the notary; we take over the organisation with power of attorney and keep both parties neutrally informed at the same level.
All registered owners must sign the purchase agreement – in the case of a married couple, therefore both, provided both are listed in the land register. The divorce settlement and equalisation of accrued gains agreement is signed by both spouses and notarially certified. The divorce decree originates from the family court.
Power of attorney and its scope
Yes – and the power of attorney is the central tool here. If one spouse wishes to handle the sale alone, they require a notarially certified power of attorney from the other for the purchase agreement. A simple or informal power of attorney is not sufficient for certification. For the pure procurement of documents (land register, WEG documents), however, a written power of attorney is sufficient.
The power of attorney for sale from the other spouse must cover the specific property, the authorisation to conclude the purchase agreement, a minimum purchase price or price range, and the submission of all declarations of execution, and must be notarially certified. Alternatively, one party can certify "without power of attorney" and the other later gives notarised approval. For consents according to § 1365 BGB, the express, verifiable consent of the other spouse is also required.
Do it yourself: step by step
- 1
Obtain the current land register extract and clarify who is registered with what share.
- 2
Coordinate with the ex-partner (ideally via lawyers) whether the sale is to be joint or if one is authorised.
- 3
If one is unavailable: arrange for a notarially certified power of attorney for sale to be prepared by the notary in good time.
- 4
Conclude a notarially certified divorce settlement or equalisation of accrued gains agreement regarding the distribution of proceeds.
- 5
Present any marriage contract and – if available – the divorce decree to the notary.
- 6
Review tax implications (speculation tax for sales within ten years) with a tax advisor.
- 7
Enquire about the remaining debt and early repayment penalty with the joint bank.
Your easy way
Or we take care of it for you
- We facilitate neutral communication between both parties and their lawyers to ensure the sale progresses objectively.
- With power of attorney, we procure land register, WEG, and property documents, so both parties have the same level of information.
- We coordinate early with the notary what powers of attorney and agreements must be available for notarisation.
- If desired, we organise professional photos, the energy performance certificate, and the entire marketing process.
- We structure the timetable so that the distribution of proceeds, mortgage redemption, and handover seamlessly interlock.
Important caveats
- If both are in the land register (Grundbuch), neither can sell alone – nothing is possible without the cooperation or a notarised power of attorney from the other party.
- § 1365 BGB: Even the solely registered spouse requires the consent of the other if the property constitutes their significant asset.
- An informal power of attorney is not sufficient for the purchase agreement – a notarially certified power of attorney or subsequent notarial approval is required.
- A sale within the ten-year period can trigger speculation tax; this should be reviewed for tax implications before the sale.
- If no agreement is reached, the last resort is a partition auction (Teilungsversteigerung) – usually with significant losses in value.
Common mistakes
- Assuming the partner registered in the land register can sell alone, even though both are registered.
- Organising the notarised power of attorney for sale from the absent partner only shortly before the notary appointment.
- Planning the use of sale proceeds without accounting for remaining debt, early repayment penalties, and tax.
- Arranging the distribution of proceeds verbally "between yourselves" instead of having it notarised.
- Overlooking speculation tax on a sale within ten years.
Frequently asked questions
- Can I sell the joint property without my ex-partner's consent?
- If both are in the land register: no. Both must sign or be effectively represented. Even if only one is registered, § 1365 BGB can require the other's consent if the property represents a significant asset.
- Is an ordinary power of attorney sufficient for one person to go to the notary alone?
- No. A notarially certified power of attorney is generally required for the real estate purchase agreement. Alternatively, notarisation can be carried out without a power of attorney and subsequently notarially approved.
- What happens if we don't agree on the sale?
- Then, the last resort is a partition auction, where the property is compulsorily auctioned. This usually results in lower proceeds than a normal sale – an amicable solution is almost always economically better.
- Is tax payable on a divorce sale?
- Possible. If the property is sold within ten years of purchase and has not been continuously owner-occupied, speculation tax may be incurred. This should be clarified with a tax advisor before the sale.
- Do we need the final divorce decree for the sale?
- Not strictly necessary for the sale itself – one can also sell during the separation period. However, the status of the proceedings is relevant for the distribution of proceeds and matrimonial property issues.
Note: this article provides general orientation and does not replace legal, tax or financing advice in individual cases. The legal position and authority practice may change. Binding information is provided by a notary, the authority, the bank or a specialist lawyer.