Assignment of the family home in the event of divorce or break up of civil partnerships
A divorce or a breakup of a civil partnership sometimes raises sensitive issues regarding housing, particularly in large urban centers which have witnessed in recent years a strong increase in the value of real estate.
In a previous article, we have already addressed the issue of the assignment of the family home in case of divorce and rupture of a civil partnership. We wrote that in those cases where the family home is an asset belonging to the other spouse/partner or a common property or in joint ownership, a rent in the amount stipulated by the court should be paid to the other spouse/partner.
There are cases, however, in which the assignment of the family home occurs and there is no rent to be paid. These are the situation when it can happen according to Portuguese law.
Rent-free assignment of the family by agreement
The first group of situations will be all those in which the spouses, in the context of the divorce process (in Court or at the Civil Registry Office) enter into an agreement regarding the assignment of the family home and do not establish any rent value to be paid by the one who has the house assigned to.
In this case, and even if the ex-spouse regrets not having stipulated a rent value in the agreement, he will not be able in the future to request compensation. In those cases, he/she will need to go to court to reverse the initial assignment or, at least, to see a rent fixed by the judge, which will only be due, however, after the date of the court ruling.
Rent-free assignment of the family home by the Family Court
In the context of a divorce lawsuit in a Family Court, the judge can assign provisionally the family home to one of the spouses. Such an assignment may include a rent value to be paid, but it may also happen that a rent-free assignment is justifiable, in view of the personal and patrimonial circumstances of each spouse.
This will happen if the Court, using equity criteria, understand that personal and patrimonial situation of one of the spouses recommends special protection and consequently decides on the assignment of the family home without a rent to be paid. This can only happen, in our view, in cases where the Court is deciding on the provisional assignment of the family home.
In this case, the ex-spouse to whom the house has not been assigned cannot claim, retroactively, compensation values if they weren’t stipulated by the Family Court.
However, in the context of the subsequent lawsuit for the definitive assignment of the family home, the court cannot, in our view, refrain from stipulate a rent amount, even if this value is adjusted to the circumstances of the case and the financial needs of the ex-spouses.