- Posted by Massimo Mellaro
Does the spouse continue to keep the house when the kids grow up and move?
The family house is the place where the spouses decide to live and create their family.
As long as the relationship between the couple is going well there is no legal issue concerning the house, but what happens if the spouses get divorced? Who has the right to go on living in the family home after the divorce?
According to Italian Family Law, when the judge decides on the couple’s divorce a decision will also be made as to who will be assigned with the family house. In the event the property is not jointly owned by the spouses, the decision will not be related to who is the actual owner, on the contrary, the judge will take into consideration only the childrens’ best interests. In fact, for them the family house represents stability and a “safe” place.
The main prerequisite for obtaining the family home is to be the spouse who is given custody of the children, the rationale being to make sure that the spouse with whom the children live with, stays in the house. Obviously, this is not a set rule and some exceptions may occur from case to case, according to specific circumstances. The judge will always avoid further traumas on the children, as a divorce is already unsettling and moving to a different home and life-style may cause in major the children further major distress.
It must be noted that the cohabitation of the spouse with custody with the child/children must be stable, even though the child/children may leave the home for short periods for study or work reasons, it is essential that the child/children return to the house on a regular basis and as soon as possible. This principle has been recently confirmed by the Italian High Court in order 06 May 2019 n. 11844, in the event the child/children move abroad and return to the house less frequently and there is no stable cohabitation, the spouse loses the right to go on living in the house if she/he is not the owner of the property.
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