The assignment of the family home is often a stumbling block to the peaceful definition of the causes of separation, divorce and regulation of the relationships of unmarried parents precisely because in the home, more than in other assets, the partners make a considerable economic and emotional investment.
The family home for the Italian system, is the place where the family durably and mainly coexists, fulfilling the primary needs of housing.
Family houses can not be considered as those existing in holiday resorts, or those used for temporary stays connected to seasonal needs, even if carried out with regular and habitual repetition. In cases where, at the time of application for separation, the building is no longer a family home, for any reason, that domestic habitat, already dissolved, can not be pronounced the assignment of the family home.
The enjoyment of the family home is assigned by the judge taking into account the interests of the children as a priority.
The Court can therefore assign the residence to the spouse who is not the owner or co-owner of an enjoyment right on it, be it real or personal, only if the minor children or non-self-sufficient adults live with the spouse.
The assignment of the dwelling is therefore subordinated to the assumption of the assignment or placement of minor children or of cohabitation with adult and economically non self-sufficient children.
But what happens if one of the spouses has a child from another marriage? The assignment of the marital home provides that the subjects, whose protection is preordained, are children of both spouses, regardless of the title of ownership of the house; it follows that the right to the assignment to the cohabiting spouse with a minor child who is not a child of the other spouse must be excluded.
The assignment of the family home is therefore aimed at the exclusive protection of children and in the interest of these children to remain in the domestic environment in which they grew up and can not be arranged as part of the maintenance allowance provided for the spouse in order to make up for it. to the economic needs of the weaker spouse.
When children become adults and economically independent, the provisions of separation or divorce related to the assignment of the marital home can be changed and therefore it is possible to appeal to the Court to obtain the change of conditions.
The right conferred on the spouse, who does not hold a right of ownership or enjoyment, on the marital home, with the judicial provision for the assignment of the said house at the time of separation, is a personal right of enjoyment and not of real law. The assignment of the marital home includes, as a rule, not only the property, but also the movable property, furnishings and services found there.
It is however possible an agreement between the parties for the collection of some of the furniture of the family home, especially if owned exclusively by one of the spouses.
The payment of expenses related to the use of the family home, owned by one of the spouses and assigned during the separation to the other spouse (including those, of the kind of condominium expenses, which concern the maintenance of common things placed at the service also of the family home), are borne by the spouse assignee, in the absence of an express provision that accepts the burden on the spouse owner.
The assignee of the family home is required to pay the ordinary expenses, and not the extraordinary ones. Starting from the year 2012 the municipal tax unique (Imu), replaces both the income tax on income from second homes and the ICI. The IMU must be paid in the event of separation or divorce from the spouse assignee even if he is not an owner.
Also the TARSU, the tax for the disposal of solid urban waste, is due by the assignee of the family home that has only the enjoyment.
When does the right to housing fail?
The right to enjoyment of the family home is lost when the assignee:
- he does not live in a family house or does not live there permanently.
- contracts new marriage
- cohabit more uxorio
When the property is held on the basis of a lease contracted by the spouse to whom the judge has recognized the right to live in the family home, no change will occur on the contractual relationship with the landlord.
On the other hand, in the case of a lease stipulated with the spouse who, as a result of the separation, must leave the house in favor of the assignee, the latter happens in the contract and becomes the subject obliged to pay the fee. Article. 6 of the 392 / 1978 Law expressly provides for taking over the lease in the event of personal separation allowing the preservation of the accommodation in favor of the separated spouse not having any contractual relationship with the lessor but jointly with the spouse in enjoyment.
When the asset is held as a loan, the provision of assignment does not cancel the loan contract and the spouse assignee of the property is required to return it to the loaner as soon as he requests it.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.