Civil partnerships

Divorce and separation: what happens to the family home?

1. Divorce and Family Home

The family home is the main asset of many a divorcing couple and often plays a central role in divorce lawsuits. In fact, it is often the family most valuable asset.

In Portugal, property is not divided in the divorce process/lawsuit, but only after the divorce is granted. If there is an agreement, the division can be made, in certain cases, the same day the divorce is granted. If there isn’t an agreement, a second lawsuit, called “inventário”, shall be necessary.

Meanwhile the family home can be granted to one or other of the ex-spouses, after or during the divorce lawsuit, meaning that one of the spouses or ex-spouses shall have the exclusive right to live in the family home.

In the event of a consensual divorce granted in the Conservatória de Registo Civil, an agreement must be reached regarding the family home, or else the divorce can only be granted by a court-of-law.

The family home can be rented, it can be a jointly owned, or it can be in the sole name of one of the spouses. In all these cases, the family home can be assigned to any one of the spouses.

The family home rented by the wife can be assigned, by agreement or court decision, to the husband. In these cases, the Conservatória or the Court will inform the landlord of the transfer of the lease.

If the property belongs solely to one of the spouses and the court grants it to the other spouse, the judge will determine the amount of the rent to be paid and the terms of the lease. The same will happen if the house jointly owned and is assigned to one of the ex-couple members until the property division.

So, what should be the criteria that should govern the allocation of the family home to one or the other?

In the event of a court decision, the assignment of the family home will be determined according to (i) the needs of the spouses and (ii) the interests of the children.  It is, therefore, the needs (and possibilities) of each of the spouses and the interests of the children that will ultimately determine who will be assigned the family home. In the case of property belonging to the other spouse or jointly owned, the assignment of the house to the other will be made under a lease and the rent amount shall be determined by the court.

2. Dissolution of a civil partnership: what happens to the family home?

It is known that marriages are less and less and civil partnerships numbers are increasing. There are more children born out of wedlock today then children born of married parents.

Now, what happens to the family home when a civil partnership ends? Is it possible, for example, that the mother who lives with the couple’s children is entitled to a family home?

By family home we must understand the one where the center of family life of the spouses (or civil partnerships) is permanently, stable and lasting.

The family home can be rented, it can be owned by one of the couple’s members or even jointly owned by both.
In either case, the family home may be assigned to one of the ex-couple’s members, taking into account the needs of both of them and the interests of the children.

If the tenant is one of the members of the couple, the lease may be transferred to the other and the landlord will not have the possibility of opposing the transfer.

If the house is owned by one of them, it can still be assigned to the other member of the couple. In this case, however, the court will determine the amount of the rent to be paid and the conditions of the lease, taking into account the circumstances of the case.

Likewise, if the house is jointly owned, it can be rented to one of them, and the court will determine the rent amount and conditions of the lease.

The assignment of the family home following the end of a civil partnership is decided by a sentence handed down in a judicial proceeding in a family court.

3. What happens to the family home when one of the civil partners dies?

A civil partnership grants its members some rights which, however, are not the same as those granted by marriage. For example, civil partners are not heirs to each other, which sometimes has very serious consequences in cases where the survivor doesn’t have an income.
In the event of death, however, the law provides that the surviving member of the civil partnership may remain in the family home, even if it is in the sole name of the deceased. That will also be the case when the family home is jointly owned by both.

In these cases, the surviving member is given a housing right, for a period of 5 years, and may also, for the same period, use the household furniture.

In situations where the civil partnership has lasted for more than 5 years, the right to use the house will be granted for an identical period.

These deadlines may also be extended in cases where the Court deems it justified, namely for reasons of equity or economic need.

Once the period for which the surviving member of the civil partnership is granted the right to use the house has ended, he will be entitled to rent the house, under market conditions. If, perhaps, he/she does not reach an understanding in this regard with the property owners (in principle, the deceased’s heirs), the Court will decide. During this period, the surviving civil partner shall also have a pre-emptive right in case the house is sold.

These rights will not be granted to the civil partner if he has another house in the same municipality or, in the case of Oporto and Lisbon, also in neighbouring municipalities.

If the family home is rented, to the surviving members assists the right to rent the house in the same terms as in the case of married couples.

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