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When divorcing, spouses often need to determine what will happen to the family home they have occupied together. This is easier in a divorce by mutual consent, because the parties agree on the matters expressly listed in the Family Code, including use of their former home. In contested divorce proceedings, where the spouses have claims against each other, the law allows the family home to be allocated for use to one spouse. Where the home cannot be used separately by both spouses, the court may grant its use to one of them if that spouse has requested it and has a housing need. The latter circumstance is proved by a certificate showing that the applicant does not own immovable property. Witness evidence may also be used to help the court assess whether the spouse has relatives or other close persons with whom they could live after the divorce.<\/p>\n
Although the court must be asked to decide on use of the home in the situation above, where the spouses have minor children it decides the issue of its own motion in the children\u2019s interests. Article 56(2) of the Family Code goes further by allowing the district court to grant use of the home to the parent who has been granted the exercise of parental rights, even where the property belongs to the other spouse. This possibility is limited in time: it may continue only until the children reach adulthood, while parental rights are being exercised. To restore equality between the parties, who will remain the children\u2019s parents but no longer be spouses, the spouse using the home owes rent to its owner. A tenancy therefore arises between the former spouses. It may be entered in the Property Register at the Registry Agency, is governed by the Obligations and Contracts Act, and entails payment of rent. If the parties cannot agree on the amount, either may ask the court to determine it. Only the parent owes rent; no rent is payable for the minor children. Otherwise, there would be opportunities for arrangements or set-offs that could harm the child\u2019s interests and put the child at a disadvantage.<\/p>\n
Use of the family home ends when the tenancy term expires and when the children reach adulthood. It may also end if the housing need of the spouse using it ceases\u2014for example, if that spouse acquires ownership, an undivided share or a right of use over residential property. Grounds for vacating the family home also include a new marriage by the spouse using it and cohabitation as a family with a new partner in that home.<\/p>\n
Whenever you face divorce or division of family property, it is advisable to consult a qualified and experienced divorce lawyer who can protect your interests.<\/p>\n