You can deduct all maintenance payments to your ex-spouse, regardless of whether they use the funds for this purpose or not. It does not matter whether you make the maintenance payment voluntarily or are obliged to do so.
You can deduct the following expenses as maintenance, provided they are typical maintenance payments:
In the case of free provision of a flat, this is considered maintenance in kind, which can be taken into account in real splitting at the local rental rate. The local rental rate must be applied even if the parties have agreed on a lower housing benefit for maintenance purposes (BFH ruling of 29.6.2022, X R 33/20). However, the BFH makes the following restriction: If the joint children continue to live in the provided flat, the housing benefit attributable to them is not taken into account in the maintenance payments deductible under § 10 (1a) No. 1 EStG.
The BFH also points out another special feature: The provision of a flat to the divorced or permanently separated spouse may also be based on a paid legal relationship. In other words, the provision of use is not maintenance, but a "genuine" rental. This does not fall within the scope of § 10 (1a) No. 1 EStG, i.e. real splitting, but is to be assessed as income from renting and leasing, as in the case of renting to third parties.
In the case in dispute, the BFH assessed the separation and divorce settlement as not intended to be a rental in the traditional sense, but rather maintenance in kind. However, this may be different in individual cases, especially if there is explicit mention of "rental of living space" or if the contract text includes the terms "rent" or "payment".
