Divorce in sight: what about your home?

Divorce in sight: what about your home?

"We've been married for about two years, have no children and live in the flat my husband has rented for many years. Our relationship has deteriorated and I want a divorce, but he's against it. Neither of us wants to leave the flat, so who will get it?

Elisabeth, Carouge

When the spouses' cohabitation is suspended, in the event of disagreement it is appropriate to apply for measures to protect the marital union in order to organise separate living arrangements. These protective measures are ordered by the judge and are provisional in nature (art. 175 et seq of the Civil Code). They may be necessary when one of the spouses refuses to divorce, which obliges the other to wait two years before being able to apply for divorce on his or her own, unless there are serious grounds for doing so. One of the questions that arises is what will happen to the family home during these two years if each spouse applies to the judge for it.

The judge will have to award the dwelling to one of the spouses exclusively on the basis of an analysis of the situation. More specifically, he will have to assess whether there are any overriding reasons that would justify granting enjoyment of the home to one of the spouses to the detriment of the other. Among these reasons, the judge generally considers the interests of the children to be overriding, whether or not they are born of the union. If there is no question of children, the judge will assess the interests of each spouse, including the need for a place to exercise their profession, an overriding emotional interest (a house built by a family member, for example), their state of health, their ability to find accommodation and their financial situation. In this respect, the inability to pay the rent alone - which has become exorbitant for one of the spouses - may be an argument against the application.

As the law does not define what constitutes an important reason, any overriding need may be invoked, whether social, professional or financial; the judge has broad discretion in weighing up the competing interests. The fact that your husband is the tenant and that the lease has been in his name for many years is not in itself a sufficient reason, if it is not accompanied by one of the other reasons mentioned above, for him to obtain enjoyment of the home.

Under these measures, when the judge awards the home to the spouse who is not the tenant, the contractual relationship with the landlord is not transformed. The lease can only be legally transferred to the other spouse at the time of the divorce. The lease contract therefore remains in the name of the tenant, who may no longer have use of it, at least temporarily. However, it should be noted that the non-tenant spouse is protected from any attempt by the other spouse to terminate the lease in retaliation, thanks to article 266 of the Code of Obligations.