Who may stay in the family home during a divorce?

When you separate from your spouse, the question of who stays in the family home usually has to be settled before anything else. It is answered in two stages: first for the duration of the divorce proceedings, then for the period after the divorce is registered.

Can you stay in the home while the divorce is pending?

Either spouse can ask the court for a provisional measure granting exclusive use of the family home while the proceedings run. These requests are dealt with quickly, and the decision applies until the divorce takes effect.

What does the court look at?

The court weighs the interests of both spouses. What tends to be decisive is where the children will live, whether either spouse has somewhere else to go, each spouse’s financial ability to house themselves elsewhere, and whether one spouse’s 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 required to leave it if the interests of the other spouse and of the children outweigh his or her own. The measure concerns use, not ownership: it does not decide who ultimately keeps the house, and it does not change who remains liable on the mortgage.

What happens once the divorce is registered?

The spouse who was living in the home has a statutory right to continue using it for six months from registration, on application, even where the home legally belongs to the other spouse. This is a transitional right meant to give time to arrange something else. It does not affect how the house is ultimately divided.

Who ends up with the house?

That depends on the matrimonial property regime and, in practice, on the mortgage. Where one spouse wants to take over the home, the lender must be willing to release the other from joint and several liability and accept the remaining spouse alone.

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 practical outcome is then usually a sale and division of the proceeds, or of the residual debt if the house is worth less than the mortgage – often the harder conversation. That remaining debt is divided in the same way as the rest of the estate, and the liability outlives the marriage.

What if you rent your home?

Where the family home is rented, the court can determine which spouse becomes the sole tenant from the date the divorce is registered, regardless of whose name is on the lease. The landlord is not a party to the divorce but is bound by that decision.

What should you keep in mind in practice?

Moving out has consequences beyond the practical: it can affect how a provisional-use request is assessed, where the children are considered to live, and how maintenance is calculated. If you are considering leaving, get advice about the sequence first. Where safety is at stake, leave and take advice immediately afterwards.

Keep paying the mortgage or the rent in the meantime if you are liable for it. Arrears build up against both names and damage the position of whoever eventually stays in the home.

Summary

• During the proceedings, either spouse can ask the court for exclusive use of the family home; ownership is not decisive.
• After the divorce is registered, the spouse who lived there keeps a six-month statutory right to continue using it.
• Taking over the home usually 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 which spouse becomes the sole tenant, whatever the lease says.

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; ask the court for a provisional measure first if agreement is not possible.

Does the six-month right after divorce apply automatically? No, it applies on application by the spouse who wants to rely on it, not automatically.

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