The assignment of the marital home to the spouse with whom the children live, in the aftermath of the separation or divorce judgment, is always crucial and core of numerous controversies. A major issue is to the possibility of hosting, within the property, third parties and, in particular, a possible new partner.

When the family home is assigned to the wife

The criterion used is quite simple: every time the couple has a minor child, of age but not yet self-sufficient or handicapped, the judge assigns what was once the former family home to the parent with whom the child himself is placed.

As a consequence, in the absence of children or in the presence of adult children with their own income, the house remains with its legitimate owner.

The court’s decision can only concern the dwelling in which the family lived permanently before the separation, the so-called habitual residence or family home. It cannot, therefore, involve additional properties such as, for example, the holiday home or any other property bought as an investment.

Can the former wife cohabit with her new partner to the assigned family home?

The purpose of the assignment of the house to the former spouse is not to guarantee the latter economic support (support that is already paid by the maintenance allowance) but to allow the children to continue to live in the same domestic habitat, avoiding the further trauma of the transfer.

This also implies that the former spouse who has his own income and who does not see the divorce allowance recognized can still be recognized the right of residence in the family home if he/she is the placeholder of the children.

However, the assignment of the family home must not represent a limit for the beneficiary to “rebuild a life”, which is right guaranteed by the law. Hence, according to jurisprudence, the ex-wife does not lose the family home in which she lives with her children, despite having decided to cohabit there with the new partner.

In fact, the domestic habitat that has constituted for the child the centre of affections, interests and daily habits must be protected. This is the orientation that can be seen in the most recent case law.

Is the former wife who cohabit with the new partner entitled to maintenance?

If in principle, the jurisprudence considers that a new stable cohabitation makes the right to maintenance terminate, the United Sections of the Supreme Court have however excluded from this consequence the cases in which the former wife has renounced to her own career to look after the family and children. In this case, in fact, the maintenance allowance remains despite the new cohabitation, in order to guarantee the beneficiary a decent standard of life.

In case you need assistance in relation to separation, divorce, assignment of the family home, children placement and custody do not hesitate to contact