Who stays in the family home: separation and the house in six legal systems
Italy, France, Germany, Spain, England and New York compared on the family home after a separation - occupation versus ownership, the children's role, the deadlines nobody reads, and the one system that can transfer the house outright.
The problem
The relationship is over, there are children, there is a mortgage, and there is one house. Both of you want to stay in it, and one of you is on the title. Six of the seven jurisdictions here have something to say about that, and the first thing to understand is that most of them are answering a narrower question than the one you asked: not who ends up owning the house, but who lives in it and on what terms.
What they agree on
Every system in this comparison separates occupation from ownership, and every one of them does so deliberately. Italy's art. 337-sexies allocates 'il godimento della casa familiare' - the enjoyment, not the title. Spain's art. 96 allocates 'el uso de la vivienda familiar y de los objetos de uso ordinario de ella'. Germany's § 1361b lets one spouse demand that the other leave the marital home 'zur alleinigen Benutzung'. New York's Domestic Relations Law § 234 draws the line inside the section itself, giving the court one power to determine questions of title and a separate power to direct possession. The consequence is the same everywhere: an order about who lives there does not, by itself, change who owns it.
Everywhere, children move the answer, and they do so as an express instruction to the court rather than as a matter of sentiment. Italy: the home is allocated 'tenendo prioritariamente conto dell'interesse dei figli'. Spain: in the absence of an approved agreement, the use goes to the minor children and to the spouse in whose company they remain. Germany: § 1361b(1) sentence 2 states that an unbillige Harte 'kann auch dann gegeben sein, wenn das Wohl von im Haushalt lebenden Kindern beeintrachtigt ist', and § 1568a(1) requires the welfare of children living in the household to be taken into account. England: s. 25(1) of the Matrimonial Causes Act 1973 gives 'first consideration' to the welfare while a minor of any child of the family under eighteen.
And everywhere ownership still counts for something, even where it does not decide. Italy directs the judge to take the allocation into account in regulating the parties' financial arrangements, 'considerato l'eventuale titolo di proprieta'. Germany requires ownership, a heritable building right or a usufruct to be 'besonders zu berucksichtigen' during separation, and raises the threshold to unbillige Harte after divorce where one spouse owns. Spain restricts the owner's power to sell rather than removing his title. England alone can simply move the title.
Where they part company
| Jurisdiction | What its law does | Why it matters |
|---|---|---|
| Italia | Italy makes the allocation binding on a purchaser. Art. 337-sexies provides that the order allocating the home and the order revoking it 'sono trascrivibili e opponibili a terzi ai sensi dell'articolo 2643'. | Spain reaches for a similar goal by a different device and stops short of it. Art. 96(3) requires the consent of both spouses, or judicial authorisation, to dispose of a home whose use has been allocated, and the restriction is recorded in the Registro de la Propiedad - but the article then adds that 'la manifestacion erronea o falsa del disponente sobre el uso de la vivienda no perjudicara al adquirente de buena fe'. Italy's registration binds the buyer; Spain's registration is coupled with an express protection for the good-faith buyer against a false declaration by the seller. |
| Italy is the only member of this cluster whose home rule reaches unmarried parents. Art. 337-sexies sits in the chapter opened by art. 337-bis, whose scope provision applies the chapter to separation, dissolution, cessation of civil effects, annulment and nullity of marriage 'e nei procedimenti relativi ai figli nati fuori del matrimonio'. | France's art. 215 is expressly for spouses; Germany's §§ 1361b and 1568a are about the Ehewohnung; New York's § 234 operates only in an action for divorce, separation, annulment or nullity; England's ss. 24 and 25 apply on divorce, nullity or judicial separation, and the English page points unmarried couples to s. 14 of the Trusts of Land and Appointment of Trustees Act 1996 instead. Spain's art. 96 speaks throughout of conyuges. A separating couple with children and no marriage is in a materially different position depending on which of these systems they are in. | |
| Italy attaches an unrelated duty to the same article, and it is easy to miss. The last part of art. 337-sexies requires each parent of minor children to notify the other of a change of residence or domicile within a peremptory thirty days, and makes the parent who fails to do so liable for damage caused to the spouse or the children by the difficulty of locating them. | No other member of this comparison couples the home allocation with a notification duty of this kind. It is worth knowing about precisely because a reader looking up the family-home article will not expect to find a liability rule about moving house at the end of it. | |
| France | France does not allocate the home at all. Art. 215 is a prohibition on unilateral disposal during the marriage: 'les epoux ne peuvent l'un sans l'autre disposer des droits par lesquels est assure le logement de la famille, ni des meubles meublants dont il est garni', whatever the matrimonial regime and whichever of them owns it. The spouse who did not consent may seek annulment within a year of learning of the act, and never more than a year after the matrimonial regime is dissolved. | This protects the home from being sold, mortgaged or given up under a notice to quit behind the other spouse's back, and it stops working exactly when the couple separates - the French page says in terms that allocation on separation or divorce is governed by other provisions. So the French member of this cluster answers the question 'can he sell it without me' rather than 'who stays'. It is also spouses-only: PACS partners and cohabitants are outside it. |
| Deutschland | Germany's two thresholds run in the opposite direction to intuition. During separation, § 1361b(1) requires that exclusive use be necessary 'um eine unbillige Harte zu vermeiden', taking the other spouse's interests into account. On divorce, § 1568a(1) requires only that the claimant is 'in starkerem Masse angewiesen' on the home than the other spouse, or that allocation is equitable for other reasons. | The temporary measure is harder to obtain than the permanent one. The exception restores the balance: where one spouse owns the land, or holds a usufruct, heritable building right or real right of residence, § 1568a(2) puts the unbillige Harte test back for the divorce stage too. § 1361b(2) then carves out violence - after an unlawful and intentional injury to body, health, freedom or sexual self-determination, or a threat of such an injury or of killing, the whole home is as a rule to be handed over. |
| Germany contains the one irrebuttable presumption in this comparison, and it punishes moving out. § 1361b(4): where a spouse has moved out of the marital home after separation and has not declared a serious intention to return to the other spouse within six months, 'so wird unwiderleglich vermutet, dass er dem in der Ehewohnung verbliebenen Ehegatten das alleinige Nutzungsrecht uberlassen hat'. | Unwiderleglich means it cannot be disproved, however good the reason for leaving. Italy's art. 337-sexies also ends the right where the assignee stops living there stably, but that is a ground for revocation to be established, not an automatic and unanswerable presumption on a six-month timer. A German spouse who leaves temporarily and wants to come back needs to say so, provably, inside six months. | |
| Germany is also the only one that reaches into the tenancy. § 1568a(3): the spouse to whom the home is allocated steps into the existing lease in place of the other, or continues a joint lease alone, at the moment the spouses' notification reaches the landlord or the housing-allocation decision becomes final, with § 563(4) applying so that the landlord may terminate for cause in the person of the incomer. § 1568a(5) allows either the entitled spouse or the person entitled to let to demand a lease on locally customary terms where none exists. § 1568a(6) then extinguishes the claim one year after the divorce decision becomes final if it has not been brought. | Elsewhere in this comparison, an order about the home operates only between the spouses and leaves the landlord's contract untouched. Germany transfers the tenancy by operation of the section, and attaches a one-year cut-off that is easy to miss because it runs from the divorce rather than from any event concerning the flat. | |
| España | Spain is the only member with an express end date written into the allocation. Art. 96(1): the use goes to the minor children and to the spouse they live with 'hasta que todos aquellos alcancen la mayoria de edad', with a judicially fixed extension where a child's disability makes continued use advisable, and adult children who were already in that situation treated as minors for the purpose. Once the use ends, the housing needs of those without economic independence are met through the maintenance rules between relatives. | Italy's art. 337-sexies contains no age limit at all. Instead it ends the right on three events concerning the person who has it: not living, or ceasing to live, stably in the home; cohabiting more uxorio; or remarrying. Two different theories about when the arrangement stops - Spain measures it by the children growing up, Italy by the assignee's own conduct - and both are in the text rather than in the case law. |
| United Kingdom | England has by a distance the widest power of the six, and it is a power over the asset rather than over the living arrangements. Section 24 of the Matrimonial Causes Act 1973 lets the court order one party to transfer to the other, to a child of the family, or to a person specified for a child's benefit, 'such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion'. It can also order property to be settled, and can vary or extinguish an interest under any ante-nuptial or post-nuptial settlement made on the parties, including one made by will or codicil. | 'The house is in my name' is a complete answer nowhere in this comparison, but only in England is it irrelevant to the question of ownership as well as occupation. Italy, Spain and Germany allocate use and leave the title where it was; England can move the title itself. The settlement limbs also reach assets held in a structure - a family trust set up for the couple - which nothing else here does. Two express limits sit in the text: paragraphs (c) and (d) do not extend to a settlement in the form of a pension arrangement, and an order made on or after a divorce order does not take effect until that order is final. |
| England is also the only one that refuses to give the court a rule. Section 25 imposes a duty to have regard to all the circumstances and then lists eight matters to have particular regard to - resources including earning capacity a party could reasonably acquire, needs and obligations, the standard of living before the breakdown, age and duration of the marriage, disability, contributions 'including any contribution by looking after the home or caring for the family', conduct only where it would be inequitable to disregard it, and lost benefits. | There is no percentage in the section and no formula. The children's welfare is 'first consideration', which the English page points out is deliberately weaker than the paramountcy standard used for decisions about upbringing under the Children Act 1989. Spain and Italy, by contrast, give the court a rule about the house - use follows the children - and leave much less to be weighed. | |
| New York | New York's power is the narrowest here and is expressed without any standard at all. DRL § 234 lets the court in a matrimonial action determine questions of title between the parties and make 'such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties'. Nothing about children, no threshold, no time limit; the direction may be made in the final judgment or by orders before or after it. | It is a bare discretion where Italy, Spain and Germany give criteria and England gives a list. Division of property is elsewhere entirely - equitable distribution under § 236 - and § 234 does not decide it. Where the order affects title to real property, a certified copy must be recorded in the county where the property sits under Real Property Law § 297-b. |
The provision in each country
Each card links to the page that reproduces the official text and explains it in that country's own language.
Italia Codice Civile
France Code civil
Deutschland BGB
- § 1361b BGB During separation a spouse may demand sole use of the home where necessary to avoid an unreasonable hardship - with violence as a special case, and an irrebuttable presumption of surrender for the spouse who moves out and does not declare an intention to return within six months.
- § 1568a BGB On divorce the spouse more strongly reliant on the home may demand it, subject to a harder test where the other owns - and steps into the existing tenancy in place of the other, with the claim lapsing a year after the divorce becomes final.
España Código Civil
United Kingdom Matrimonial Causes Act 1973
- MCA 1973 s. 24 The court may order a spouse to transfer property to which they are entitled, order it to be settled, or vary or extinguish an interest under a nuptial settlement - whoever the title deeds name.
- MCA 1973 s. 25 All the circumstances, with first consideration to the welfare of any minor child, and eight particular matters - resources, needs, standard of living, age and duration, disability, contributions including homemaking, conduct where it would be inequitable to ignore it, and lost benefits.
New York Domestic Relations Law
Where there is no answer in the code
A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.
-
California
In law we don't carry
Family Code § 6321
A lookup miss rather than a gap in the law. California would answer this with Family Code § 2550, which requires equal division of the community estate and does have a page in this corpus, and with § 6321 on exclusive use of the dwelling, which does not. The lookup answered the custody half of the prompt instead and returned §§ 3040, 3044 and 3100, none of which is about the house. Rather than attach a member that does not answer the question asked, California is recorded as absent here; § 2550 answers who ends up owning what, which is a different question from who stays in the house while it is being decided.
That's the law in seven places. Now let's settle your problem.
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This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.