What happens to the house after a divorce with children in Italy?

Divorce is never nice, especially when there are children involved, but sometimes it’s necessary and there are practical matters to take care of. One question many people have is what happens to their house in Italy if they get divorced or are separated and they’ve got children? How is a house divided in a divorce and who gets it? Well, it all depends on the type of ownership…

According to the guide Soldi&Divorzi from Il Sole 24 Ore, the starting point to answer this question is Article 42 of the Italian Constitution regarding private property, and specifically that which is subordinated to the right of children (whether adults or minors) who are not economically self-sufficient. This becomes the first criterion for the assignment of a house in Italy that is co-owned by a couple in a marriage or civil partnership who get a divorce or separate.

If there are no children

If there aren’t any children to support, the house remains the property of the person who bought it. If the house is only in one person’s name, it will belong to them after the divorce. If the house is in both your names, it will depend on the terms of the separation and the communal property rights.

A judge then takes into account the value of the house in determining any maintenance allowance that is due, considering a hypothetical value of how much the rent would be on the property.

Rented housing after a divorce

If the house is not owned but rented, the spouse whose name it is registered in has the right to take over the contract until it ends. In this case, the amount of rent counts towards how much alimony payments will have to be made.

Gifted property after a divorce

If the married couple lived with their children in a property gifted on loan for free by the relatives of one of the spouses, on the other hand, it must be clarified whether the lender who legally owns the property can request that it be returned to them. Recent decisions by the Italian Supreme Court have established that the assignment of the property to one of the two ex-spouses does not change the conditions of the loan, nor can this be solved by the will of the lender. Therefore, it is not possible to request that the property be freed up until the family’s housing needs have ended, except in the case of urgent and unpredictable need on the part of the property owner.

How much of the house is given to my ex and can I get it back?

When a court assigns the property to one of the two ex-spouses, this also includes all garages, cellars, furniture and appliances related to the property that are of practical relevance to the lives of those who stay living there and everything else that doesn’t belong personally to the spouse who has been excluded from the home.

The assignment of the house can be revoked if the conditions for it cease to exist, for example, if the children find new accommodation or if they need to change house. This way, the other partner can regain control of the property.

The house can then be granted to one of the ex-spouses, but only partially if the other one has property rights or other rights in rem over the property and if there is a consensual agreement to divide the property and if the rights of the children and the other spouse are not violated. They can then share ownership of the home, but obviously on condition that the property reasonably allows a division of space and that the cohabitation is not detrimental to the welfare of the children.

From the original Italian article: Figli e condizioni economiche decidono il destino della casa (Il sole 24 ore)