The family home is often the most emotionally and financially significant asset in any divorce. It’s where memories were made, children grew up, and lives were built together. Yet when a marriage ends, this cherished space becomes a complex legal battleground involving ownership rights, mortgage liability, temporary use arrangements, court intervention, and potentially forced sale.
The question of who stays and who leaves isn’t merely about emotions or fairness—it’s governed by a sophisticated web of Dutch civil law provisions that balance property rights, family interests, and financial realities. For many divorcing couples, navigating these rules feels overwhelming. For professionals advising them—mediators, notaries, financial advisors—staying current with evolving case law is essential.
This comprehensive guide walks you through the complete legal framework governing the family home during and after divorce. We’ll examine ownership structures under matrimonial property law, the six-month right of continued use, provisional measures during proceedings, buyout procedures, forced sale mechanisms, mortgage liability, division of equity or negative equity, and recent developments in case law. Consider this your roadmap through one of divorce’s most challenging terrains.
Ownership and Matrimonial Property Law: The Foundation
Before determining who can stay in the home, you must first understand who owns it. Under Dutch law, ownership determines rights—but it’s not always straightforward.
Community of property (gemeenschap van goederen) is the default matrimonial property regime in the Netherlands. Unless you’ve signed a prenuptial agreement, everything acquired during the marriage—including the family home—belongs to both spouses equally, regardless of whose name appears on the deed. This means both partners have equal rights to the property and equal say in what happens to it.
If you have huwelijkse voorwaarden (prenuptial agreement), ownership depends entirely on what the agreement stipulates. Common arrangements include separation of assets, where each spouse retains ownership of what they individually purchased, or modified community of property with specific exclusions.
Registered partnerships follow similar rules to marriage, with community of property as the default unless partners have executed a partnership agreement stating otherwise.
Here’s the crucial point: even if one partner is the sole legal owner, they cannot simply force the other to leave without court involvement. Dutch family law recognizes that the family home serves fundamental interests beyond mere property rights—particularly when children are involved. The law provides multiple mechanisms to protect the non-owning spouse’s right to housing, at least temporarily.
The ownership structure you have will shape every subsequent decision about the home: who can claim exclusive use, how buyout calculations work, and how proceeds from a sale are divided. Before taking any steps, obtain a copy of your marriage certificate or partnership registration, any prenuptial agreement, and the property deed to establish the precise ownership situation.
Temporary Exclusive Use: Article 1:165 of the Dutch Civil Code
One of the most important protective mechanisms in Dutch divorce law is the zesmaandenrecht (six-month right) codified in article 1:165 of the Dutch Civil Code (Burgerlijk Wetboek). This provision allows one ex-spouse to request continued exclusive use of the family home for up to six months after the divorce is formally registered, regardless of who owns the property.
Who can request it? Either ex-spouse can submit this request to the court, whether they are an owner, co-owner, or have no ownership interest whatsoever. The six-month period begins running from the date the divorce decree is registered in the civil registry.
Against what compensation? The law requires that continued use be granted “tegen een redelijke vergoeding” (for reasonable compensation). This means the person staying in the home must pay a usage fee to the other party. Courts typically calculate this based on a percentage of the property’s market rental value, though they may adjust it based on who’s paying the mortgage and other carrying costs.
How does the court weigh competing interests? The judge must perform a careful balancing test weighing all relevant circumstances. Children’s stability and continuity is often the decisive factor. Courts recognize that divorce already disrupts children’s lives enormously—forcing them to move immediately adds additional trauma. If one parent is the primary caregiver and the children live with that parent most of the time, courts strongly favour granting that parent continued use of the home.
Alternative housing availability matters considerably. Can the departing spouse stay with family, rent affordable accommodation, or already have alternative housing lined up? Financial capacity of both parties also factors into the analysis—courts won’t grant exclusive use if it would create an impossible financial situation for the remaining spouse.
The six-month right is explicitly temporary—it’s designed to provide breathing room while parties work out permanent arrangements, not to predetermine the ultimate outcome.
Provisional Measures During Proceedings: Article 822 of the Code of Civil Procedure
While divorce proceedings are ongoing—which can take many months—couples often need immediate resolution about living arrangements. Article 822 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) empowers courts to issue provisional measures addressing urgent matters during the divorce process, including exclusive use of the family home.
Either spouse can request a provisional measure as part of their divorce petition or through a separate motion during the proceedings. Courts apply essentially the same balancing test used for the article 1:165 six-month right, examining children’s interests, housing alternatives, financial capacity, and all relevant circumstances.
Dutch courts increasingly recognize that certain situations have inherent urgency requiring no extensive proof. Domestic conflict or unsafe situations automatically qualify. If there’s evidence of physical violence, threats, psychological abuse, or simply such severe tension that continued cohabitation has become untenable, courts will grant exclusive use quickly.
A provisional measure granting exclusive use typically includes designation of which spouse must vacate, a deadline for departure, determination of a usage fee the remaining spouse must pay, and allocation of responsibility for ongoing housing costs. These provisional arrangements don’t predetermine the final outcome—they’re explicitly temporary. However, in practice, the spouse granted provisional exclusive use often maintains that position through to the final settlement, particularly when children are involved and stability has been established.
Buyout: When One Partner Takes Over the Home
Often the cleanest resolution is for one ex-spouse to buy out the other’s share, allowing one party to keep the home while the other receives their equity portion in cash. While conceptually straightforward, buyouts involve several complex steps.
Valuation comes first. Both parties must agree on the home’s current market value, ideally through a professional appraisal (taxatierapport) from a certified real estate appraiser. The appraised value minus the outstanding mortgage balance equals the equity to be divided.
Mortgage transfer presents the biggest practical hurdle. The buying spouse must qualify for a mortgage in their sole name sufficient to pay off the existing joint mortgage and pay the selling spouse their share of the equity. Ontslag uit hoofdelijke aansprakelijkheid (release from joint liability) is essential for the departing spouse—until formally granted by the mortgage lender, both ex-spouses remain jointly and severally liable for the full mortgage debt.
Once mortgage approval is secured, both parties execute a transfer deed (leveringsakte) before a civil law notary, transferring ownership from both spouses to the buying spouse alone and recording it in the public land registry (Kadaster).
If the buying partner doesn’t qualify for sole mortgage financing—common after divorce, when one income must now cover costs previously supported by two—potential workarounds include family loans, a co-borrower, or a delayed buyout. Recent case law emphasizes that courts won’t order a buyout if it’s financially unrealistic.
Forced Sale and Court Authorization: Articles 3:174 and 3:178 of the Dutch Civil Code
When buyout proves impossible or one spouse refuses to cooperate with sale, Dutch law provides clear mechanisms to force the process forward. Article 3:178 BW establishes that any co-owner can at any time demand division of jointly owned property, while article 3:174 BW authorizes courts to grant permission (machtiging) for sale when one co-owner refuses to cooperate.
Dwangsommen (penalty payments) are often requested alongside the authorization. Courts can order that if the non-cooperative spouse continues refusing to cooperate, they must pay a financial penalty for each day or week of continued obstruction.
Most powerfully, under article 3:300 BW, courts can issue a vonnis in de plaats van handtekening—a judgment that legally replaces the refusing party’s signature on necessary documents. This means the cooperative spouse can proceed with appointing a real estate agent, accepting offers, and transferring ownership to a buyer without the other’s actual consent.
Recent case law shows courts increasingly willing to grant these requests. Judges recognize that allowing one party to indefinitely block sale creates an untenable situation, particularly when mortgage payments continue accumulating. Courts view prolonged refusal to cooperate, absent legitimate justification, as misbruik van recht (abuse of right).
Schadevergoeding (damages) can also be claimed for deliberate obstruction. Courts have awarded substantial compensation in cases involving prolonged, unjustified non-cooperation.
The Mortgage: Shared Liability Until Transfer
One of the most dangerous misconceptions in divorce is assuming that physically moving out of the family home ends your legal obligations regarding it. Both partners remain hoofdelijk aansprakelijk (jointly and severally liable) for the full mortgage debt until the mortgage is formally transferred to one person’s name or completely repaid.
Joint and several liability means the bank can pursue either borrower for the entire outstanding amount—not just half. If your ex-spouse stops making payments after you’ve moved out, the mortgage lender can come after you for the full missed payments, late fees, and potential foreclosure costs. Your informal agreement about who handles payments has zero legal effect on the bank.
The urgency of resolving mortgage liability early cannot be overstated. Every month that passes with joint liability still in effect represents ongoing financial risk. The clean solutions are complete buyout with mortgage refinancing in one name and formal release of the other spouse, or sale of the property and full repayment eliminating the debt entirely.
If neither is immediately possible, document everything in writing, insist on receiving monthly proof that payments are being made, and monitor your credit report regularly to catch any issues early.
Dividing Equity or Negative Equity
Once the home is sold or one party buys out the other, the financial result must be divided. The default rule is 50/50 division—each ex-spouse receives half the net proceeds after paying off the mortgage and covering sales costs. Similarly, if there’s negative equity (restschuld), each bears half that debt.
Courts deviate from equal division only when redelijkheid en billijkheid (reasonableness and fairness) demands it, which requires exceptional circumstances. Grounds courts have accepted include domestic violence and resulting trauma substantially impairing one spouse’s financial capacity; disproportionate contributions from separate non-marital assets; long delays caused by one spouse’s obstruction during which property value declined; and virtually zero financial capacity in one spouse while the other has substantial means.
A significant 2025 case illustrates this: a court dramatically reduced one spouse’s share of negative equity based on findings of domestic violence, PTSS, reduced work capacity, and the long delay between divorce and sale. However, such deviations remain exceptional—courts require compelling evidence and strong legal arguments.
Recent Legal Developments
Dutch family law continuously evolves through judicial decisions. Several notable trends have emerged recently.
Courts are increasingly willing to grant forced sale authorizations relatively quickly when obstruction is clear, taking a firmer stance against spouses who block sale without legitimate reason. When one party requests suspension of a forced sale order during appeal, courts now routinely impose conditions including payment of market-rate usage fees, preventing the appealing party from enjoying free housing while dragging out proceedings.
Damages awards for deliberate non-cooperation are growing. A 2025 judgment awarded over €77,000 for willful frustration of sale and breach of a settlement agreement—signaling that non-cooperation carries real financial consequences. At the same time, courts are enforcing procedural requirements more strictly, with non-compliance increasingly leading to dismissal of appeals.
At Law & More, we monitor these developments continuously to ensure our clients benefit from the most current legal strategies.
Frequently Asked Questions
Can a spouse simply force the other to leave, even if that person is a co-owner?
No, absolutely not. Even if only one spouse legally owns the property, they cannot unilaterally force the other to leave without court authorization. Dutch family law recognizes that the family home serves fundamental interests beyond mere property ownership. If both spouses are co-owners—as they typically are under community of property—neither can evict the other without legal process. Simply changing the locks or removing belongings would constitute an unlawful act (onrechtmatige daad) for which you could face legal consequences including damages and forced reinstatement. Even in situations of severe conflict, proper legal procedure must be followed.
What exactly is the six-month right under article 1:165 BW, and how do you apply for it?
Article 1:165 BW grants either ex-spouse the right to request continued exclusive use of the family home for six months after divorce registration, regardless of ownership. Even a non-owning spouse can apply to stay in a property legally owned by their ex. You request this right by filing a petition (verzoekschrift) with the district court, explaining why you need continued use—factors like primary custody of children, lack of alternative housing, or work situation. If granted, you must pay a reasonable usage fee to your ex-spouse, typically calculated as a percentage of market rental value. Extensions beyond six months are possible but rare, requiring exceptional justification.
Which factors does the court weigh when deciding on exclusive use of the home?
Courts conduct a comprehensive balancing analysis. Children’s interests carry enormous weight—courts examine which parent is the primary caregiver, where children’s schools and social networks are located, and how much disruption a move would cause. Alternative housing availability is examined thoroughly, as is the financial capacity of both spouses to sustain the arrangement. Medical circumstances, safety concerns, and ongoing domestic conflict also factor in. The court’s ultimate question is: given all circumstances, which arrangement best balances both parties’ legitimate interests while protecting any children involved?
What happens to the mortgage if one partner leaves but the mortgage is still in both names?
Both parties remain fully and jointly liable for the entire mortgage debt until formal release is obtained from the lender. Joint and several liability means the lender can pursue either borrower for 100% of missed payments—not just their half. Your informal agreement with your ex about who handles payments has zero legal effect on the bank. If your ex stops paying, your credit rating will be destroyed alongside theirs. Monitor your credit report regularly and act immediately if you discover missed payments.
How does a buyout procedure work, and when must the bank give approval?
A buyout begins with property valuation, followed by calculating equity by subtracting the outstanding mortgage from current value. The buying spouse must arrange financing to cover both the equity payment and potentially refinancing the mortgage in their sole name—this is where bank approval becomes essential. The lender assesses whether the buying spouse alone has sufficient income and creditworthiness to handle the mortgage independently. If approved, the bank releases the selling spouse from all liability. Both spouses then execute a formal transfer deed before a civil law notary, with the transaction registered in the Kadaster. The process typically takes 8-12 weeks from initial agreement to completed transfer.
What can I do if my ex structurally refuses to cooperate with the sale?
You have several escalating legal remedies. Document the refusal thoroughly, then file a petition with the district court requesting a machtiging tot verkoop (authorization to sell) under article 3:174 BW or a forced division order under article 3:178 BW. Request that the court authorize you to proceed without your ex’s consent, impose dwangsommen that accumulate daily if obstruction continues, and issue a vonnis in de plaats van handtekening so the judgment legally substitutes for their signature on all necessary documents. Courts increasingly grant these requests when obstruction lacks legitimate justification.
Can I claim damages if my ex deliberately sabotages the sale?
Yes, but you must meet strict legal requirements. Damages are possible under article 6:162 BW if your ex’s refusal lacks any reasonable justification and causes you concrete, demonstrable financial harm—such as accumulating mortgage interest, lender penalties, or loss of a concrete sale opportunity. Courts scrutinize these claims carefully; you must substantiate each damage item with solid documentation. Vague claims without concrete proof typically fail. Recent case law has awarded substantial damages in proven cases of deliberate obstruction.
How is equity divided, and when does the court deviate from the 50/50 rule?
The default rule is equal division—each ex-spouse receives 50% of net equity after mortgage repayment and sales costs. Courts deviate only when reasonableness and fairness demand it, which requires exceptional circumstances backed by compelling evidence. Accepted grounds include domestic violence impairing one spouse’s financial capacity, disproportionate contributions from separate assets, delays caused by obstruction during which value declined, and extreme financial disparity between parties. Simply feeling the equal split is unfair is not sufficient—the burden of proof lies with the party requesting deviation.
What are the consequences of negative equity if one partner cannot contribute financially?
When the home sells for less than the outstanding mortgage, both ex-spouses bear this debt equally by default. If one party cannot pay their share, article 6:13 BW allows the unpaid amount to be shifted to the other co-debtor—meaning the solvent party may end up responsible for the entire restschuld, with only a theoretical right of recourse against the insolvent ex. Courts can deviate from equal sharing in extreme cases, particularly when one spouse’s financial incapacity is thoroughly documented and equal division would produce genuinely unconscionable results.
Does having minor children affect who gets to stay in the home?
Children’s presence carries enormous weight—often the decisive factor. Courts consistently show that the parent who is the primary caregiver and with whom children mainly reside has a strong likelihood of being granted continued use of the family home, even without legal ownership. Courts view children’s need for continuity and stability—proximity to school, established routines, familiar environment—as outweighing property ownership rights in the near term. However, children’s interests don’t automatically override all other considerations. The parent claiming to need the home for the children’s sake must demonstrate they can actually afford the ongoing costs.
The Bottom Line
The question of who stays in the family home after divorce has no universal answer—the outcome is always maatwerk, custom-tailored to your specific situation. Courts weigh ownership structures against family interests, financial realities against children’s needs, and legal rights against practical feasibility.
Several key principles emerge: ownership matters but doesn’t alone determine who stays; children’s interests carry immense weight in judicial decisions; both parties remain fully liable for mortgage debt until formally released; temporary solutions provide breathing room but don’t resolve ultimate ownership; courts will force sale when cooperation fails; and equal division is the starting point but courts can deviate for compelling reasons.
Early professional legal guidance dramatically improves outcomes. The decisions you make in the first weeks after separation can have lasting consequences for your rights and financial position.
At Law & More, we guide clients through these exact situations daily. Our family law team understands both the legal intricacies and the human dimensions of divorce. Facing questions about your family home and divorce? Contact Law & More for a confidential consultation. Our offices in Eindhoven and Amsterdam serve clients throughout the Netherlands, with our multilingual team ensuring you can discuss your situation in the language you’re most comfortable with.