During divorce proceedings, either spouse can ask the court for a provisional measure (voorlopige voorziening) granting exclusive use of the family home, regardless of who owns it. After the divorce is registered, the court can allow the spouse who lives there to stay for up to six months, against a reasonable fee, under Article 1:165 of the Dutch Civil Code (BW). Who ultimately keeps the house depends on the matrimonial property regime and on the mortgage lender.
Table of contents
Can you stay in the home while the divorce is pending?
Yes, if the court grants you exclusive use of the family home as a provisional measure. You can request this together with the divorce petition or separately; these requests are heard with priority, and the decision applies until the divorce is registered.
What does the court look at?
The court weighs the interests of both spouses and of the children. Decisive factors tend to be where the children will live, whether either spouse has somewhere else to go, each spouse’s financial ability to find other housing, and whether work or care responsibilities are tied to the house.
Does it matter who owns the house?
Ownership matters less than people expect. A spouse who owns the house alone can still be ordered to leave if the interests of the other spouse and the children outweigh his or hers. The measure concerns use, not ownership: it does not decide who keeps the house, and it does not change who is liable for the mortgage.
What happens once the divorce is registered?
At the request of a spouse, the court can decide that this spouse may continue living in the home for six months after the divorce is registered in the civil registry, even if the home belongs (partly) to the other spouse (Article 1:165 BW). This right is not automatic: you must ask for it, and you pay the other spouse a reasonable fee for the use. It gives you time to arrange other housing and does not affect how the house is divided.
Who ends up with the house?
That depends on the matrimonial property regime and, in practice, on the mortgage. If one spouse wants to take over the home, that spouse buys out the other’s share, and the lender must be willing to release the other spouse from joint and several liability for the mortgage.
What if the lender will not release you?
If the lender refuses, no agreement between the spouses and no court order can force it. The usual outcome is then a sale and division of the proceeds, or of the residual debt if the house is worth less than the mortgage. That residual debt is divided like the rest of the estate, but towards the bank both spouses remain liable for the full amount.
What if you rent your home?
If you live in a rented family home together, both spouses are tenants by law (Article 7:266 BW), whoever signed the lease. On divorce, the court can decide at the request of either spouse who will remain the tenant and from which date; on that date the tenancy of the other spouse ends (Article 7:266(5) BW). The landlord is bound by that decision.
What should you check if you want to stay in the home?
Staying is easiest to defend when you have prepared the practical and financial side early.
- Request exclusive use as a provisional measure if you cannot agree with your spouse.
- Make clear where the children will live and why the house matters for them.
- Ask the mortgage lender early whether you can carry the mortgage on your own income.
- Request the six-month right of Article 1:165 BW in time if you need it after registration.
- Keep paying your share of the mortgage or rent while the proceedings run.
What should you check if you are leaving the home?
Moving out can affect the provisional-use decision, where the children are considered to live, and how maintenance is calculated.
- Get advice about the order of steps before you move out; where safety is at stake, leave first and take advice immediately afterwards.
- Agree in writing who pays the mortgage, rent and fixed costs in the meantime.
- Claim a reasonable fee if your spouse uses the home you own (partly) after the divorce.
- Ask the lender to release you from liability if your spouse takes over the house.
- Take your personal documents and belongings, but do not remove joint property without agreement.
What can we do for you with the family home in a divorce?
Our divorce lawyers help you settle the home step by step:
- We file a request for exclusive use of the family home as a provisional measure.
- We request the six-month right to stay after registration, or oppose it.
- We calculate each spouse’s share in the house and the residual debt under your property regime.
- We negotiate the takeover of the house and the release from the mortgage with your spouse and the lender.
- We ask the court to decide who remains the tenant of a rented home.
Summary
- During the proceedings, either spouse can ask the court for exclusive use of the family home; ownership is not decisive.
- After registration, the court can allow you to stay six months, against a reasonable fee, if you request it (Article 1:165 BW).
- Taking over the home requires the mortgage lender to release the other spouse from liability.
- If the lender refuses, sale and division of the proceeds or the residual debt is usually the outcome.
- For a rented home, the court decides at the request of a spouse who remains the tenant (Article 7:266 BW).
Frequently asked questions
Can I change the locks if my spouse has moved out?
Not on your own authority while you are both still entitled to use the home. If you cannot agree, ask the court for exclusive use as a provisional measure first.
Does the six-month right after divorce apply automatically?
No. The court grants it only at the request of a spouse, with the divorce order or later, and you pay the other spouse a reasonable fee for the use (Article 1:165 BW).
Who pays the mortgage while the divorce is pending?
Towards the bank, both spouses remain liable for the full mortgage. Between yourselves, you can agree on a division; otherwise the court takes the housing costs into account when it sets maintenance as a provisional measure.
