Who stays in the family home after a Dutch divorce is decided by ownership, by the court and by the mortgage lender, in that order, and rarely by agreement alone. Neither spouse may put the other out of the house without a court decision, whoever is on the title deed. While the divorce is running, the court can allocate the use of the home as a provisional measure under article 822 Rv; after the divorce is registered, the spouse living there can claim six more months of use under article 1:165 BW. Everything after that is a question of division: a buyout, or a sale.
Who owns the home, and why the date of the marriage matters
Start with ownership, because it drives every later step, and the answer depends on when you married. For marriages and registered partnerships entered into on or after 1 January 2018 the default regime is the limited community of property (beperkte gemeenschap van goederen). Property each of you already owned before the marriage stays private, as do most gifts and inheritances. A house one of you bought before the wedding therefore does not become joint simply because you both lived in it and both paid towards it.
For marriages entered into before 1 January 2018, and without huwelijkse voorwaarden, the old full community of property applies: in principle everything either of you owned or acquired falls into one estate, the family home included, whatever the deed says. Where prenuptial or postnuptial conditions were made, they govern, and the two questions to answer from the deed are which estate the house belongs to and what has been agreed about compensation between the estates. Registered partnerships follow the same rules as marriage.
Ownership does not settle occupation, though. Even a sole owner cannot change the locks, remove the other’s belongings or force a departure. Doing so is an unlawful act under article 6:162 BW and can be undone in summary proceedings within days, usually with a costs order attached. The route to a house with one person in it runs through the court.
While the divorce is running: provisional measures under article 822 Rv
A divorce takes months, and the practical question of who sleeps where arrives immediately. Article 822 Rv allows the court, on the application of either spouse, to make provisional measures for the duration of the proceedings, among them the exclusive use of the matrimonial home and the household effects in it. The application can be made with the divorce petition or separately, and it is heard quickly.
These measures are provisional in name and often decisive in fact. They lapse when the divorce is registered, or earlier if the court says so, but the arrangement they create tends to survive into the final settlement, particularly where children have settled into a routine. Where there has been violence, threats or intimidation, the mayor can also impose a temporary restraining order on the home under the Wet tijdelijk huisverbod, which is a different instrument with a different test, and the two are often confused.
The six-month right of continued use: article 1:165 BW
Article 1:165 BW gives a narrower right than it is usually described as giving, and the detail decides who can use it. On the application of a spouse, the court may rule, in the divorce decision or a later one, that a spouse who is living in the home at the time the decision is registered may carry on living there, and using the household effects, for six months after that registration, against reasonable compensation. Two conditions do the work: you must actually be living there when the divorce is entered in the register, and the home must belong wholly or partly to the other spouse or be at that spouse’s disposal.
So this is not a right for the spouse who has already moved out, and it is not a right the departing owner can be surprised by after the event: it has to be asked for and awarded. The period runs from registration of the decision in the register of marriages, not from the hearing or from the day one of you left. During those six months a transaction entered into by the other spouse without consent cannot be used to cut the right short.
Six months is short by design. It buys time to arrange finance, find housing or complete a sale; it does not decide who ends up with the house. Where more time is needed, the answer is normally an agreement recorded in the settlement, or arrangements made in the division proceedings, rather than an extension of this provision.
What the court weighs when deciding who stays
Whether the application is made under article 822 Rv or article 1:165 BW, the court balances the interests of both spouses on the facts. The interests of any minor children usually weigh heaviest: which parent the children mainly live with, how far the school and their friends are, and how much upheaval a move would add to a year that already has too much of it. Continuity is treated as a real interest, not a sentimental one.
Against that the court sets what each of you can actually do. Whether the other spouse has somewhere to go, whether the one who stays can carry the mortgage, the utilities and the maintenance alone, and whether either of you has a medical or safety reason to be in or out of that particular house. A parent who argues that the children need the home but cannot show the monthly costs can be met is likely to lose the point, because the court will not create an arrangement that collapses in three months.
Paying for the use of the home: the gebruiksvergoeding
The spouse who stays generally pays the other for the exclusive use of a jointly owned or jointly financed house. Under article 1:165 BW that compensation is part of the right itself; outside it, article 3:169 BW is the usual basis, since a co-owner deprived of the use of the property is entitled to be compensated for it. There is no statutory formula and no fixed percentage. Courts commonly reason from the equity in the property and a notional return on the departing spouse’s share, and then adjust for who is in fact paying the mortgage interest, the owners contributions and the maintenance.
Two practical points follow. Compensation is normally awarded from the date it is claimed, not from the date one of you moved out, so a claim made late is money lost. And the compensation interacts with maintenance: the same monthly capacity cannot be counted twice, and it is better to present the housing arrangement and the maintenance calculation together than to litigate them separately.
Buying out the other spouse, and the release from joint liability
A buyout is the cleanest outcome and the one that most often fails on finance. It has four steps, and the order matters. First a valuation, normally a taxatierapport from a registered valuer, agreed jointly or by two valuers who appoint a third if they differ. Then the equity: the agreed value less the mortgage debt, adjusted for any compensation claims between the estates and for savings or investment accounts linked to the mortgage. Then the bank. Then the notary.
The bank step is the one that decides the outcome. The remaining spouse has to be able to carry the whole mortgage alone, and the departing spouse needs the ontslag uit de hoofdelijke aansprakelijkheid, the formal release from joint and several liability. That release is a decision of the lender, not of the court and not of the two of you: no judge can order a bank to grant it. Until it is given in writing, the spouse who has moved out is still fully liable to the lender for the entire debt, whatever the settlement agreement says between you.
If the lender says no, the realistic options are a co-borrower or a guarantee acceptable to the bank, a family loan, a deferred buyout with a fixed longstop date, or a sale. What does not work is an informal arrangement under which one of you keeps living there and pays the mortgage while both names stay on the loan for years: the departing spouse carries the full risk of default while owning none of the upside, and that position also blocks any new mortgage of their own. The civil-law notary executes the deed of transfer and registers it at the Kadaster, and it is the registration, not the signature, that completes the transfer.
When one of you refuses: forced division and forced sale
Nobody has to stay in a joint ownership. Article 3:178 BW allows any co-owner to demand division at any time, and the court can order it and determine how it is to be carried out. Where one co-owner obstructs the practical steps, article 3:174 BW allows the court to authorise the other to sell the property, and article 3:300 BW allows a judgment to take the place of the missing signature, so an estate agent can be instructed, an offer accepted and a deed of transfer executed without the other’s co-operation.
Those orders are usually reinforced with a penalty payment (dwangsom) for each day or each week the obstruction continues. A court asked to authorise a sale will want to see what has actually been tried: correspondence, a valuation, a concrete offer, and the financial consequences of delay. Systematic refusal without a reason of substance is treated as an abuse of right under article 3:13 BW, and a co-owner who blocks a sale in bad faith can also be liable in damages under article 6:162 BW, provided the loss is demonstrated item by item and not merely asserted.
The counterweight is that the court can postpone a division for up to three years where the interests of one party require it (article 3:178 BW), and the interests of young children living in the house are the reason most often accepted. That is a serious argument, but it is a delay, not an entitlement to keep the house.
Dividing the equity, and what happens with a residual debt
Where the house falls into a community of property, the community is divided in equal shares under article 1:100 BW. Net proceeds after repayment of the mortgage and the costs of sale are split down the middle, and a residual debt (restschuld) is borne in the same proportion. Deviation from equal shares is possible only in exceptional circumstances, on the standard of reasonableness and fairness, and Dutch courts set that bar high: dissatisfaction with the outcome is not enough, and the party asking for the deviation carries the burden of proof.
Two adjustments are far more common than a deviation, and are often confused with one. Where private money was used for a jointly owned house, or community money for a private one, the estates owe each other a compensation claim (vergoedingsrecht), which for marriages under the current regime is in principle proportional to the value of the property rather than a flat return of the sum paid. And where one spouse has paid the whole mortgage instalment after separation, the settlement of the joint debt between the two of you is a separate calculation from the division of the equity.
A residual debt does not disappear on divorce, and the lender is not bound by how you divide it. Both borrowers remain liable to the bank for the whole amount; the internal split only decides who can recover from whom afterwards. Under articles 6:10 and 6:13 BW, the share of a joint debtor who cannot pay is spread over the others, so a solvent ex-spouse can end up servicing the entire residual debt with only a paper right of recourse. Where the debt cannot be carried at all, the questions become the lender’s arrears policy, the possibility of a settlement, and, in the last resort, the statutory debt restructuring route.
Deliberately concealing an asset from the division has its own sanction: under article 3:194 paragraph 2 BW a party who conceals a community asset forfeits the whole of their share in it. That is the provision to reach for where money has moved shortly before the separation, and it is a stronger remedy than a general claim in damages.
The mistakes that cost the most
Moving out without recording anything is the first. Departure does not end liability to the lender, it can weaken the argument for continued use later, and after a while an informal arrangement starts to look like an agreed one. Put the arrangement in writing, however temporary it feels, and state that it is without prejudice to the division.
Relying on a settlement agreement instead of the bank is the second. A clause saying one spouse takes over the mortgage binds only the two of you; without the lender’s written release the other remains fully liable. The third is delay: compensation for use generally runs from the date it is claimed, values move, and a house that neither of you can finance is a problem that grows. The fourth is treating the tax position as an afterthought. Mortgage interest relief, the bijleenregeling and the treatment of a residual debt turn on dates and on who lives where, and those are questions for a tax adviser, taken before the deed is executed rather than after. The cost of the divorce itself is usually small next to the cost of getting the house wrong.
Frequently asked questions
Can one spouse force the other to leave the house?
No, and not even a sole owner can. Changing the locks, removing belongings or barring the door is an unlawful act under article 6:162 BW, and the excluded spouse can be let back in by way of summary proceedings within days, with the costs following. Exclusive use has to be granted by the court, as a provisional measure under article 822 Rv while the divorce runs or under article 1:165 BW for the six months after it is registered. The one exception is a temporary restraining order imposed by the mayor where there is a threat of violence, which is a separate public-law measure.
Who can claim the six-month right under article 1:165 BW?
The spouse who is living in the home at the time the divorce decision is registered, where that home belongs wholly or partly to the other spouse or is at that spouse’s disposal. It is awarded by the court on application, in the divorce decision or a later one, and the six months run from registration in the register of marriages. It carries an obligation to pay reasonable compensation for the use. A spouse who has already moved out cannot use the provision.
What does the court look at when deciding who stays?
All the circumstances, with the interests of any minor children usually weighing heaviest: which parent they mainly live with, the distance to school, and the disruption a move would cause. The court then tests whether the arrangement is workable, looking at whether the other spouse has somewhere to go and whether the one who stays can actually carry the mortgage and the running costs alone. Safety concerns and documented conflict count. An unaffordable arrangement is not granted merely because children are involved.
What happens to the mortgage when one partner moves out?
Nothing, until the lender says otherwise. Both borrowers stay jointly and severally liable for the whole debt, so the bank can pursue either of you for the full arrears, and an arrangement between you about who pays has no effect on the lender. Arrears are also reported to the credit register, which affects the borrowing capacity of both. The only clean exits are a buyout with a written release from joint liability, or a sale that repays the loan.
How does a buyout work, and can a court order the bank to co-operate?
Valuation, then the equity calculation, then the lender, then the notary. The remaining spouse must qualify for the whole mortgage alone and the lender must grant the departing spouse a release from joint and several liability. No court can order a bank to give that release, which is why a buyout should be made conditional on it and given a longstop date. The transfer is completed by a notarial deed registered at the Kadaster.
What can I do if my ex-partner refuses to co-operate with a sale?
Ask the court to order the division under article 3:178 BW, to authorise you to sell under article 3:174 BW, and to give a judgment that replaces the missing signature under article 3:300 BW, reinforced by a penalty payment for continued obstruction. Bring the file: the valuation, the offers, the correspondence, and the cost of the delay. Persistent refusal without a reason of substance is treated as an abuse of right under article 3:13 BW.
Can I claim damages for deliberate obstruction of a sale?
It is possible under article 6:162 BW, but it is demanding. You must show that the refusal had no reasonable justification and that it caused you concrete, quantifiable loss, such as a specific offer that was lost or interest and costs that would otherwise not have been incurred. Each item has to be substantiated with documents. General assertions that the delay was expensive do not succeed, and the practical remedy is usually the forced sale rather than the damages claim.
When do courts depart from an equal division?
Rarely. A community of property is divided in halves under article 1:100 BW, and departure requires exceptional circumstances measured against reasonableness and fairness. What looks like a deviation is more often a compensation claim between the private and community estates, which is a different calculation. Where an asset has been concealed, article 3:194 paragraph 2 BW forfeits the concealing party’s entire share in that asset, which is a distinct and stronger sanction.
What if there is a residual debt and one of us cannot pay?
The lender can still claim the whole amount from either of you. Between the two of you the debt is in principle shared equally, but under articles 6:10 and 6:13 BW the share of a debtor who cannot pay is spread over the other, so the solvent ex-partner may end up carrying all of it with only a right of recourse on paper. Address it before the sale: a settlement with the lender, a repayment arrangement, or advice on the statutory debt restructuring route.
Do minor children decide who keeps the house?
They weigh heavily but they do not decide. The parent with whom the children mainly live has a strong case for continued use in the short term, because continuity of school, routine and surroundings is treated as a real interest. It is a claim about occupation, though, not about ownership: the house still has to be divided, and the argument fails where the costs cannot be met. Where both of you stay in the house for a period, the practical and legal pitfalls of that arrangement are set out in our note on living together after separation.
Where we can help
The family home is usually the largest asset and the hardest part of a divorce to unwind, because ownership, occupation, the mortgage and the tax position all have to be resolved together and each of them has its own timetable. Our family law team in Eindhoven and Amsterdam advises on provisional measures and continued use, on buyouts and releases from joint liability, and on division and forced sale where agreement is out of reach. If a decision about the house is coming up, take advice before you move out or sign anything.
