The marital home, or “family housing”, is very protected. Whatever the matrimonial regime, the civil Code prohibits a spouse from selling or mortgaging it without the consent of the other, even if he or she is the sole owner. In divorce proceedings, the occupation by only one of the spouses of the marital home which they own becomes a real financial issue.
The use of this accommodation by only one of the spouses remains free until the request for divorce, unless the judge decides otherwise (civil Code). Most often, therefore, as long as one of the spouses has not sued their spouse for divorce, the one who has left the marital home cannot request occupation compensation from the one who remains.
Occupancy allowance
During the divorce procedure, free use of housing can be left to a spouse under the duty of support (by the orientation order and provisional measures), even if it is personal property of the other. The beneficiary must declare this occupation in his or her income tax return as alimony (taxable income). The other spouse will be able to deduct it from their income.
Private enjoyment of the marital home – inducing occupation compensation payable by the occupant and excluding enjoyment of the property by the other – begins on the date the divorce takes effect. This can be set by the judge or agreed by the future ex-spouses in the divorce agreement by mutual consent.
From this date, the occupation compensation owed by one of the ex-spouses constitutes land income for the other, to be declared. When the divorce is pronounced, it has already happened that court decisions award the family housing which only belonged to one of the spouses to the other spouse, as a compensatory benefit, particularly when the couple’s children usually reside there.