Divorce brings not only emotional but also practical consequences, including the decision of who will continue to use the shared house or apartment. In this article, we will look at the options for living after divorce according to the legal relationship to the property: how to proceed when the property belongs to both spouses, to one of them, or when it is a rental property.
If the property is community property (SJM), it is part of the property settlement after the dissolution of the marriage. The ideal solution is a mutual agreement – the spouses can agree to sell the property and split the proceeds, or one of them can keep it and pay out the other. Such an agreement saves time, money and mental strain.
It also depends on the type of divorce the spouses choose. The Civil Code allows for contested and uncontested divorce. In the case of an uncontested divorce, one of the conditions is that the spouses agree on the arrangement of their property, their living arrangements after the divorce and, if applicable, alimony. If an uncontested divorce is on the table, it does not automatically include a division of the matrimonial property. You therefore have more options:
Tip: We have discussed these options in more detail in our article on the settlement of SJM.
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The court generally follows the principle that the SJM should be divided equally between the former spouses. At the same time, however, the decision takes into account, for example, the care of minor children, investments from personal property in a shared home or contributions to the family household. The court process can be time-consuming and costly – you need to factor in the costs of a lawyer and any expert reports. Without a timely settlement within three years of the divorce, the property will automatically be divided between the spouses as community property, which can lead to complications in future use.
Tip: In its original case law, the Supreme Court stated that the appreciation of one spouse’s investment in the community property can only be taken into account by prior agreement. However, the Constitutional Court found this ruling to be erroneous and therefore overturned it. We discuss the principle of valorisation of the community property in more detail in our separate article.
If the real estate is exclusively owned by one spouse and is not part of the community property (SJM), it is of course not subject to property settlement after divorce. At the same time, it should be noted that the other spouse has acquired a “right of residence” in the property during the marriage.
In the event of a divorce, the owner of the property can apply to the court for the eviction of the other spouse. In its decision, the court should take into account not only the ownership right itself, but also the possible protection of the weaker partner and the child entrusted to his/her care. In the context of a divorce, the court may make the eviction conditional on the provision of alternative accommodation, possibly including an obligation on the property owner to contribute to part of the cost of the new accommodation. This typically happens if there are minor children living in the household or if the other spouse’s situation is otherwise socially or medically complicated. In exceptional cases, the second spouse may also retain the right to the home.
Again, the best solution for both former partners is an agreement that can clearly stipulate under what conditions and for how long the other spouse can continue to use the property, thus avoiding litigation and uncertainty.
If the spouses lived in a rental apartment during the marriage, the situation is different after the divorce compared to ownership. As a rule, the spouses have joint tenancy. This is because even if only one of the spouses is the original tenant, a joint tenancy automatically arises after the marriage, unless the spouses agree otherwise. After the divorce, the spouses can agree who will continue to live in the apartment. It is ideal to conclude this agreement in writing and to inform the landlord of the change. This agreement is usually closely related to childcare arrangements.
If an agreement is not possible, one of the spouses can ask the court to decide which of them will be able to continue the tenancy. The court will usually consider the social and financial circumstances of both parties, their health, care of minor children and other aspects that may affect their housing situation. The court’s decision may also include an obligation for the other spouse to vacate the apartment.
As we have already indicated above, a mutual agreement between the former spouses is always the most effective and least expensive solution to the issue of housing after divorce. If the spouses can come to an agreement, they will save themselves time, stress and the costs of legal representation or court proceedings. The agreement can include various options – for example, one spouse keeps the property and pays the other an appropriate amount, or they agree to sell the property and split the proceeds.
It is important that the agreement is in writing and legally binding. It is advisable to consult a lawyer to ensure that the agreement is correctly worded and legally compliant, especially if it concerns the transfer of ownership or the payment of compensation.
The agreement should also include the terms and conditions of any eviction or the conditions under which the other spouse may use the property if the agreement is temporary. In addition to housing, it may address other obligations such as joint debts or household expenses. In this way, the former partners can avoid lengthy court proceedings and the associated complications that could arise if the agreement is not possible.
Our law firm is not always approached by just one party to a dispute, but sometimes both parties come together if they want to reach an agreement that suits everyone. This is how we were contacted by Eva and Pavel, who were going through a divorce and were dealing with the issue of future living arrangements in their shared house. The house was a jointly owned property (SJM) and although they had agreed to divide most of the property, they could not find agreement on who would continue to use and own the house. Mrs Eva argued that she wanted to stay in the house for the sake of their two children, who grew up there and attend a nearby school. Mr Paul agreed to leave the house to Eva but demanded that she pay him back.
The situation became complicated, however, because Eva did not have sufficient funds to pay her husband back immediately. We therefore recommended the option of splitting the settlement into instalments, which would allow Eva to remain in the house while ensuring Paul’s fair share of the property. We helped draft an agreement that set out a specific amount and payment schedule. In this way, we achieved a solution for both clients that respected their situation and the needs of their children.
We will walk you through the whole process step-by-step from filing to court approval. Will will also ensure the best possible settlement for you, your children and your property. We proceed quickly, discretely and with experience. You may also pay after services are provided.
Lucie understands the legal profession like few others, and she defends the interests of her clients both inside and outside the courtroom. Lucie has won hundreds of disputes, and her role on our team is to ensure the smooth and effiecient transfer of real properties. She is also experienced in both civil law and family law.
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