Except in cases where one of the spouses abandons the marital home, which constitutes a punishable offence, the question of the marital home arises at two key stages of the proceedings: first, after the divorce petition is filed, when the judge decides on the provisional measures that will remain in force throughout the proceedings, and then when the divorce is granted, with each phase raising distinct legal issues.
The fate of the marital home during divorce proceedings
Divorce proceedings may be initiated by one spouse or by both spouses by mutual agreement.
When the divorce petition is filed by only one of the spouses, he/she may, in accordance with Article 200-1 of the Civil Code, request to reside alone in the marital home. This is a provisional measure left to the discretion of the judge who organizes the separation during the proceedings. The spouse making the request must state the reasons for his/her request, such as the presence of children or the possibility of residing in a second home and justify them.
If the judge decides to grant this request, the other spouse must leave the marital home immediately upon presentation of the order, without being able to present his/her arguments before the judge.
Then, at the first hearing before the judge in the presence of the spouses, known as the conciliation hearing, the judge will determine the provisional measures to be put in place during the divorce proceedings. In this context, the question of who will have use of the marital home during the proceedings may be discussed by the parties and decided by the judge. To do this, the judge will take into account various criteria such as the financial situation of the parties, the residence of the children and the possibilities for rehousing.
When the divorce petition is filed by both spouses, it contains the requests made by the spouses for provisional measures and therefore their agreement on the allocation of the marital home. These requests, which are the result of an agreement between the spouses, are generally ratified by the judge.
In order to determine who will have the use of the marital home, the spouses must take into account each other's financial capacity to meet the costs associated with the home, in particular the payment of rent, and may need to adjust the amount of maintenance allowance paid accordingly.
The fate of the marital home after the divorce is finalized
Once the divorce is finalized, there are several possible scenarios.
If the property is jointly owned or co-owned by the former spouses, it may be sold or allocated to one of them with compensation to the other.
If the property belongs to only one spouse, he/she will usually regain its use.
If the property is rented, the judge may allocate the lease to one of the two, depending on the interests of the family.
In all cases, an agreement between the spouses can avoid a lot of tension and speed up the process. In a divorce by mutual consent, the spouses can decide together what to do with the home: sell it, buy it back, or keep it temporarily. The main thing is to set this out clearly in the divorce agreement which will be submitted to the judge for approval.
The services of a lawyer, which are mandatory in divorce cases, provide legal guidance for the agreements and ensure their effectiveness.
