Who is allowed to stay in the marital home during and after the divorce?
After spouses have decided to divorce, it often turns out that it is no longer possible to continue living together under one roof in the marital home. In order to avoid unnecessary tensions, one of the parties will have to leave. The spouses often manage to make agreements about this together, but what are the possibilities if this is not possible?
Use of the marital home during the divorce proceedings
If the divorce proceedings have not yet been concluded in court, provisional measures may be requested in separate proceedings. A provisional injunction is a kind of emergency procedure in which a judgment is given for the duration of the divorce proceedings. One of the provisions that can be requested is the exclusive use of the marital home. The judge can then decide that the exclusive use of the marital home is granted to one of the spouses and that the other spouse is no longer allowed to enter the home.
Sometimes both spouses may also request exclusive use of the marital home. In such a case, the judge will weigh up the interests and determine on that basis who has the most right and interest in obtaining the use of the dwelling. The court’s decision will take into account all the circumstances of the case. For example: who has the best possibilities to stay temporarily somewhere else, who takes care of the children, is one of the partners for his or her work bound to the house, are there special facilities in the house for the disabled etc. After the court has made a decision, the spouse to whom the right of use has not been granted must leave the house. This spouse is not allowed to enter the marital home afterwards without permission.
In practice, it is increasingly common for judges to choose the method of birdnesting. This means that the children of the parties stay in the house and that the parents stay in the marital home in turn. The parents can agree on a visitation arrangement in which the care days of the children are divided. The parents can then determine on the basis of the visitation arrangement who will stay in the marital home, when, and who should stay elsewhere on those days. An advantage of bird nesting is that the children will have as quiet a situation as possible because they will have a fixed base. It will also be easier for both spouses to find a home for themselves instead of a home for the whole family.
Use of the marital home after the divorce
It can sometimes happen that the divorce has been pronounced, but that the parties still continue to discuss who is allowed to live in the marital home until it is definitively divided. In this case, for example, the party who was living in the house when the divorce was registered in the civil status records may apply to the court to be allowed to continue living in this house for a period of six months to the exclusion of the other ex-husband. The party who can continue to use the marital home must in most cases pay an occupancy fee to the departing party. The period of six months starts from the moment the divorce is registered in the civil status records. At the end of this period, both spouses are in principle entitled to use the marital home again. If, after this period of six months, the house is still shared, the parties can request the cantonal judge to rule on the use of the house.
What happens to the ownership of the house after the divorce?
In the context of the divorce, the parties will also have to agree on the division of the house if they have the house in common ownership. In that case, the home can be allocated to one of the parties or sold to a third party. It is important that good agreements are made about the sale or takeover price, the division of the surplus value, bearing the residual debt and the release from joint and several liability for the mortgage debt. If you cannot come to an agreement together, you can also turn to the court with the request to divide the house to one of the parties or to determine that the house must be sold. If you live together in a rental property, you can ask the judge to grant the rental right of the property to one of the parties.
Are you involved in a divorce and are you having a discussion about the use of the marital home? Then of course you can contact our office. Our experienced lawyers will be happy to provide you with advice.