Between the moment a couple decides to separate and the effective declaration of a divorce, it can take many months, even years. However, during all this time, the marital home continues, in general, to be inhabited by one of the spouses. Under what conditions is this possible? We take stock.

Beware of the temporary that lasts

Most of the time, Madame stays in the house with the children, while Monsieur is hosted by friends before finding a new home. But this situation can raise financial questions, a fortiori if it drags on… Does the spouse who is gone still have to participate in paying the rent or repaying the loan? Should the wife who remains in the home compensate him for this occupation?

Before making such arrangements, be aware that as long as the family affairs judge (JAF) has not organized the conditions of your separation, you are bound to your conjugal duties, in particular with regard to accommodation. Regardless of a possible departure, the tenant spouses therefore remain jointly liable for the rents. Same thing for the maturities of a mortgage. In addition, as long as justice has not dealt with the question, the occupation of the matrimonial home by only one of the spouses does not entail any compensation.

Compensation in the hands of the judge

It is during the hearing with the family judge that everything is decided. At the end, the magistrate will issue a non-conciliation order imposing a number of provisional measures (alimony, accommodation, childcare, etc.) which will be valid throughout the duration of the proceedings and until the divorce is declared. It is at this point that the JAF will allocate the temporary enjoyment of the matrimonial home to one of the spouses.

Depending on the family's situation and interests, he may decide that this occupation is free or that it gives rise to the payment of compensation. Unless expressly stated otherwise, the latter will therefore only be due from the day of the hearing, excluding the entire previous period. In addition, the enjoyment of the property must be exclusive, which implies the handing over of the keys by those who no longer benefit from the accommodation.

To determine the amount, the judge will be based on the rental value of the property compared to the local market, but also on the share of each member of the couple if they are both owners. The amount can also be reduced by a reduction depending on the situation (precariousness, accommodation for children, etc.). Note: the spouse who receives the occupancy allowance must declare it in his tax assessment as property income. However, its payment is not deductible by the person paying it.

And after the divorce?

In principle, this occupation allowance is only temporary, until the divorce is declared and the fate of the home is settled within the framework of the partition of the couple's property (sold or bought by one of the ex-spouses ). However, in the absence of agreement, it may happen that a status quo continues even after the court decision. In this case, whoever wishes to retain the enjoyment of the domicile must make the request to the judge, who may consent to it in return for financial compensation or through the compensatory allowance.

The Court of Cassation recalled this rule in a judgment of October 3, 2019. In the present case, a divorced couple had still not settled the question of the accommodation that the ex-husband continued to live in. However, the latter did not want to pay occupancy compensation because of the dilapidated state of the property. But no matter how old it is. According to the Court, unless otherwise agreed, financial compensation is due when the home is occupied by only one of the owners.

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What about abandoning your home?

Marriage imposes a duty of cohabitation. Even if you have decided to separate from your spouse, a hasty departure may be assimilated to an abandonment of the matrimonial home. It is a fault that your ex may invoke against you during the divorce, except in the event of a legitimate reason (such as domestic violence).

Ideally, it is preferable that your departure is concerted and organized. Formalize your agreement by handwritten writing, dated and signed by you and your spouse, and do not hesitate to add operating conditions concerning children. Although without legal value, this document can be taken into account by the judge. From the outset, make maximum use of written communications and keep all emails and SMS that may constitute evidence.

Julie Polizzi for 20 Minutes