Wohnung bei Scheidung-gebrochenes Herz-Rafaela-sikkema-unsplash
– February 22, 2024

What happens to the family home after a separation?

The decisive factor as to who remains in the shared home after separation is who is more dependent on it.

If a couple has children, the spouse who is mainly responsible for looking after the children usually remains in the shared home for the duration of the separation. It is irrelevant who owns the property. If the spouses cannot agree on who should remain in the matrimonial home, they can apply for the allocation of sole use and enjoyment in proceedings for matrimonial protection measures in accordance with Art. 175 ZGB.

Jointly owned property

The ownership structure only plays a role in the divorce proceedings. If one of the spouses wishes to take sole ownership of the marital property, the other spouse usually receives a compensation payment under matrimonial property law. If neither of the spouses can/wants to take over the marital property or if they cannot agree on who should take over sole ownership of the property, it is sold and the proceeds of the sale are divided between the spouses. 

Property in the sole ownership of one party

Even if the marital property is the sole property of one spouse, the court can award it to the other spouse for their sole use and enjoyment for the duration of the separation if they are more dependent on the property.

After a divorce, however, the court cannot transfer it to the other party. However, it is possible for the court to grant the other party a temporary right of residence. This means that the party who does not own the property may continue to live in the condominium or house for a certain period of time determined by the court. In return, the judge may set compensation for living there or adjust the maintenance payments.