The assignment of the family home is often an obstacle 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.
According to the Italian legal system, the family home is the place where the family lives together durably and mainly, fulfilling the primary needs of the home.
Family houses cannot be considered as those existing in the holiday resorts, or those used for temporary stays and connected to seasonal needs, even if carried out with periodic and habitual repetition. In cases in which at the time of the separation request the property is no longer configured as a family home, due to having, for whatever reason, that domestic habitat, already dissolved, the assignment of the family home cannot be pronounced.
The enjoyment of the family home is attributed by the judge taking into account the interests of the children as a priority.
The Court can therefore assign the home to a spouse who is not the owner or co-owner of a right of enjoyment, be it real or personal, only if the minor or adult children who are not self-sufficient live with said spouse.
The assignment of the dwelling is therefore subject to the assumption of the custody or placement of minor children or cohabitation with adult children and economically not self-sufficient.
But what 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 assignment to a spouse living with a minor child who is not also a child of the other spouse must be excluded.
The assignment of the family home is therefore aimed at the exclusive protection of the children and in their interest to remain in the home environment in which they grew up and cannot be arranged as a component of the maintenance allowance provided for the spouse in order to compensate the economic needs of the weaker spouse.
When the children become of age and economically independent, the provisions of separation or divorce relating to the assignment of the marital home can be modified and therefore it is possible to appeal to the Court to obtain the modification of the conditions.
The right recognized to the spouse, who does not hold a right of ownership or enjoyment, on the conjugal house, with the judicial provision of assignment of said house during the separation, has the nature of a personal right of enjoyment and not of real right. As a rule, the assignment of the marital home includes not only the property, but also the movable property, furnishings and services found there.
However, an agreement between the parties is possible for the removal of some furniture from the family home, especially if it is the exclusive property of one of the spouses.
The payment of expenses related to the use of the family home, owned by one of the spouses and assigned at the time of separation to the other spouse (including those, of the kind of condominium expenses, which concern the maintenance of common things placed at the service family home), are borne by the assignee spouse, in the absence of an express provision that accepts the burden on the owner spouse.
The assignee of the family home is required to pay ordinary expenses, and not extraordinary ones. Starting from 2012, the single municipal tax (Imu) replaces both the personal income tax on land income from second homes and the ICI. The IMU must be paid in case of separation or divorce from the assignee spouse even if he is not the owner.
Even the TARSU, the tax for the disposal of solid urban waste, is payable by the assignee of the family home who has only the enjoyment of it.
When does the right to housing cease?
The right to use the family home ceases 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 contract of which the spouse to whom the judge has recognized the right to live in the family home is the tenant, no change will occur on the contractual relationship with the landlord.
Conversely, in the case of a lease stipulated with the spouse who, following the separation, must leave the home in favor of the assignee, the latter takes over in the contract and becomes the subject obliged to pay the rent. The art. 6 of Law 392/1978 expressly provides for the replacement of the lease contract in the event of personal separation, allowing the conservation of the accommodation in favor of the separated spouse not having original contractual relations with the landlord but shared with the tenant spouse in the enjoyment.
When the asset is held on a free loan basis, the assignment provision does not invalidate the loan agreement and the spouse assigning the property is required to return it to the bailor as soon as the latter requests it.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.