Exclusive Use of the Family Home: A Guide to Divorce & Separation

The disruption of cohabitation and the journey toward divorce are processes often accompanied by intense challenges, the most prominent being the arrangement of the spouses’ residence. According to Article 17(1) of the Family Courts Law of 1990 (as amended in 2023), either spouse is legally entitled to apply to court for the exclusive use of the family home.
This regulation aims to protect family members during the critical transitional period of separation or the dissolution of the marriage. The granting of use does not depend on who owns the property; instead, it is decided based on equity, the specific circumstances of each spouse, and, above all, the best interests of the minor children.
The law states verbatim: “In the event of disruption of cohabitation or in the event that notice is given to the Bishop or the competent religious leader in accordance with the provisions of Articles 3 and 10, respectively, of the Attempted Conciliation and Spiritual Dissolution of Marriage Law or in the event that a divorce petition is filed, the Family Court may, upon application by one of the spouses, if required for reasons of equity and in view of the special circumstances of each of the spouses and the interest of the children…”
When and on what Grounds is the Application Filed?
• When? An application for the exclusive use of the family home can be filed from the moment cohabitation is disrupted or from the moment a formal divorce notice has been sent to the Metropolis or after a divorce petition has been filed in court.
• Grounds: Equity, the special circumstances of the spouses, or the best interests of the children.
The Court has the jurisdiction: “to grant one spouse the exclusive use of all or part of the property serving as their main residence (family home), regardless of which of them is the owner or holds the right of use against the owner. The decision of the Family Court is subject to review when circumstances so require. If the right to use the family home stems from an employment relationship between one of the spouses and a third party, the granting of its use to the other spouse by the Family Court, in accordance with the terms of the preceding paragraph, can only be done if the third party also consents to it.”
What Does “Family Home” Mean?
A family home is defined as the property that serves as the primary residence of the spouses—meaning the actual space where the spouses cohabit for the greater part of the year. It can be a house, an apartment, a farmhouse, or a prefabricated home, but not a holiday home where the spouses stay occasionally. It is the space where, during the course of the marriage, the spouses and their children reside in fulfillment of their obligations stemming from the marriage.
Criteria & Essential Information for the Application
An exclusion order is considered a measure of last resort for handling intolerable situations and is not granted as a matter of routine. As established case law dictates:
• “the exclusion order is not provided as a routine stepping stone on the path to divorce, nor on the grounds that the marriage has collapsed and an atmosphere of tension exists in the matrimonial home.”
• “tensions more severe than those a family is normally expected to experience on the journey from the disruption of cohabitation to divorce must be proven.”
• “The exclusion order constitutes the measure of last resort for dealing with intolerable situations.”
To approve the relevant application, the following elements must be included:
• Legal Milestone: Proof of separation between the parties, submission of the divorce notice to the Metropolis, or the filing of a divorce petition.
• Proof of Fault: The party seeking the remedy must prove the fault of the other party.
• Respondent’s Conduct: The respondent’s behavior must justify the issuance of the requested order (e.g., violent or dangerous behavior, causing fear, distress, abandonment, or returning home at inappropriate hours).
• Mental Health of Minors: Safeguarding the children’s psychological well-being from the removal of the spouse, and ensuring they are not displaced from the home due to its proximity to schools, tutoring centers, and friends.
• Spouses’ Financial Position: Demonstrating the applicant’s difficulty in relocating (e.g., low income, health issues) that makes securing alternative housing impossible, and conversely, the respondent’s high income that enables them to reside elsewhere or the availability of another place of residence.
• Property Assets: Mentioning whether a party owns a private property that they rent out to third parties while they themselves reside in a rented property.
Note: Under the new amendment to the law, it is possible to request a Social Welfare Services Report so that the Court has all the data before it to decide in the best interests of the children.
Duration and the 2023 Amendment
Following the amendment of the Law in 2023, the following express proviso was added to Article 17(1): “Provided that, the Family Courts may, if required for reasons of equity and in view of the special circumstances of each of the spouses and the interest of the children, extend the granting to a spouse of the exclusive use of all or part of the family home even after the dissolution of the marriage, for a period of time not exceeding two (2) years from the dissolution of the marriage.”
Consequently, according to Article 17(1) of the Law, Family Courts may extend the exclusive use of all or part of the family home to a spouse even after the dissolution of the marriage, for a period not exceeding two years from the dissolution of the marriage.
Summary
In conclusion, granting the exclusive use of the family home (the couple’s primary and permanent residence) constitutes a judicial measure of last resort for dealing with intolerable situations and is not granted as a routine procedure.
To approve the relevant application, specific data is required:
• Timeline: Filed post-separation, after notifying the Metropolis, or after lodging the divorce petition.
• Evaluation Criteria: Presence of extreme behavior, financial standing, feasibility of relocation, and the need to safeguard the mental health and daily routine of the children.
• Duration: The possibility of extending the exclusive use even after the dissolution of the marriage, up to a maximum period of two (2) years.