Division of the family home after divorce – what the law says and what happens if there are children

After a divorce, the question often arises: “What will happen to the family home?” This is especially important when the spouses are co-owners of the property. The division of the family home has its own specifics, as the law protects not only the rights of the former spouses but also the interests of the children.

Legislative framework
According to Art. 27 and Art. 28 of the Family Code:

• After the dissolution of the marriage, co-ownership of the family home is settled through partition.

• Each spouse receives a share according to their ideal part (usually ½ under the regime of community property).

• The court may grant the right of use over the dwelling to the spouse who exercises parental rights over the children (Art. 56 FC).

This means that even if the property is jointly owned, the court may decide that the children and the parent with whom they live will use the dwelling until the children reach majority.

Partition of the family home after divorce

• Voluntary partition – the former spouses may agree and sign a notarized partition agreement.

• Judicial partition – if no agreement is reached, either spouse may initiate a lawsuit under Art. 341–348 CPC.

• The court appoints an expert appraiser and allocates the shares.

Supreme Court practice: In family home partitions, the court always takes into account the children’s interests. Granting the right of use to one spouse does not mean that he or she becomes the sole owner.

What happens if there are children

• If parental rights are granted to one parent, the court may order that the children and this parent remain in the dwelling, even if it is jointly owned.

• The other spouse (co-owner) may receive compensation under Art. 31, para. 2 of the Ownership Act for not being able to use the property.

• When the children reach majority, the right of use may be terminated and the property can be divided freely.

Conclusion
The division of the family home after divorce is specific, as the court considers both the property rights of the former spouses and the best interests of the children. The partition may be voluntary or judicial, but always seeks balance between the parties’ rights.