Use of the house or apartment after divorce

Quick overview

• If the property is part of the matrimonial property, there must be a division of the property.
• In the case of rental housing, the court can decide on the continued tenancy.
• The property owner may not automatically get the right to evict the other spouse.
• The court mainly takes into account the care of the children and the housing situation of both parties.
• The quickest and cheapest solution is usually an agreement between the former spouses.

Deciding who will stay in the apartment or house after the divorce? We can help you prepare the agreement, the settlement of the SJM and communication with the other party.

Community property: Who is entitled to stay in the property after the divorce?

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.

In practice, it is recommended to prepare an agreement on the division of the SJM and the future residence at the same time. This will prevent eviction disputes or mortgage complications later on. We will be happy to help you prepare the agreement.

It also depends on the type of divorce the couple chooses. 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 to adjust 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:

• You can enter into an agreement later.
• Within three years of the divorce, you can file a motion with the court to have the SJM dissolved. It will then be in its power to decide who gets specific assets and debts.
• If you do not reach an agreement or file a petition, the settlement will be automatic.

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 take into account 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.

If there is tension between the former spouses or a dispute over children, it pays to address the housing setup as soon as possible. A well-set-up agreement from a solicitor, which we will be happy to prepare, will often avoid several years of court proceedings.

Exclusive ownership by one spouse: what are the rights of the other spouse?

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 may apply to the court for 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(which we will prepare for you) which can clearly stipulate under which conditions and for how long the other spouse can continue to use the property, thus avoiding litigation and uncertainty.

Rental housing: who stays in the rental apartment after the divorce?

If the spouses lived in a rented 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 also 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.

Property use agreement: when is the best way?

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, it saves them 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.

Example from law practice

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 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 repayment schedule. In this way, we achieved a solution for both clients that respected their situation and the needs of their children.

Are you dealing with post-divorce housing?

We can help you prepare a property settlement agreement, set up the use of the property and represent you at trial. With experience in family law, we can help you minimize unnecessary litigation and protect your home and your relationships with your children.

Summary

It is not just the ownership of a house or apartment that determines who will continue to live in it after a divorce. It is important whether it is community property, sole ownership or rental housing. In particular, the courts take into account the care of the children, the social situation of both parties and the possibility of providing alternative housing. The quickest and least expensive solution is usually a written agreement between the former spouses. If an agreement is not possible, the court may decide on the use of the property.