My wife is no longer paying the rent

My wife is no longer paying the rent

"My wife and I are separated on the basis of a judgement on measures to protect our marital union. She was awarded the family home and a maintenance contribution. Now she's no longer paying the rent and the bills are coming in. Do I have to pay this rent?

If the spouses no longer agree, they can apply to the judge for measures to protect the marital union in order to organise their separate lives, particularly if the conditions for divorce have not been met. The purpose of these measures is to temporarily arrange their lives in the event that their cohabitation is suspended.

If the spouses each claim the allocation of the home, the judge weighs up the interests to determine who should get it, whether it is rented - as in this case - or owned. If there are children from the union, the children's interest in continuing to live in the family home usually takes precedence over other considerations, and the parent who obtains custody of the children generally also obtains the home. Where there are no children, the balancing of interests is more delicate, since it is based on the state of health, place of work, economic situation or any other overriding personal interest of each of the parties. However, the allocation of the home by the judge relates only to exclusive use of the home and does not change the legal relationship between the spouses and the landlord, only the relationship between the spouses.

The spouses are therefore jointly and severally liable for the rent, which means that the landlord can demand payment from either of them, and that each of them can be prosecuted, at the landlord's discretion, in the event of non-payment.

The maintenance contribution paid by a spouse is based on the principle of the obligation to maintain the family (Art. 163 CC) and is calculated on the basis of the criteria set out in Art. 125 CC, i.e. the ability of the spouses to contribute to their own maintenance and to maintain the standard of living that prevailed during the marriage. More specifically, the amount of the contribution is calculated on the basis of the income and expenses of each spouse.

When the spouse who no longer has use of the flat is nevertheless sought by the landlord, he or she has a right against his or her spouse to recover what he or she has paid. The landlord is therefore entitled to take the other spouse to court for recovery. If necessary, the Office can then draw on the alimony. It is not advisable to directly and unilaterally deduct what has been overpaid from the maintenance contribution, as the compensation cannot reduce the amount that is absolutely necessary for the debtor spouse. Failure to pay all or part of the maintenance contribution may constitute a criminal offence.