When two former spouses divorce, it is not uncommon for both to claim the right to take over the family home.
Where it is not possible to physically divide the property into two separate units, Article 1244 of the Judicial Code provides for the property to be sold at public auction.
Nevertheless, divorced spouses seeking to retain the property may invoke the preferential allocation mechanism provided for in Article 2.3.14(2) of the Civil Code. Preferential allocation then allows them to be given priority over the other former spouse seeking to purchase the property, and to put forward their arguments.
Arguments frequently put forward (including, but not limited to) include:
- their financial capacity to take over the property;
- the fact that they are the only one capable of maintaining the property;
- the fact that the property is adapted for a disability;
- the fact that the property houses the applicant’s registered office or business premises;
- the fact that the prospective buyer is financially unable to purchase another property given the rates of registration fees payable;
- family proximity;
- or, conversely, the fact that the prospective buyer needs to be close to where the children live and has no other close support network.
It is then for the judge at the Family Court to determine to which divorced spouse the family home should be awarded. With the exception, however, of cases involving domestic violence, Article 2.3.14(2) of the Civil Code leaves the judge with no discretion; the judge must award the property to the party recognised as the victim of the acts of violence, either where there is a final criminal judgment or where criminal mediation has taken place.
Until now, the right to request preferential allocation from the judge was available only to former spouses, whether married with or without a prenuptial agreement, which led the Constitutional Court to deliver a judgement on 20 June 2024 declaring these provisions to be discriminatory, in relation to former legal cohabitants.
This omission has now been rectified by the Act of 11 December 2025 amending the Civil Code, which aims to extend the possibilities for the allocation of the family home in the event of divorce and to make such allocation possible upon the termination of legal cohabitation (M.B. of 7 January 2025, which came into force on 17 January 2026).
Former partners who were in a legal cohabitation relationship may therefore now also apply for preferential allocation of the family home under the new Articles 1480 and 1481 of the former Civil Code.
