If marriage is dissolved, the court may settle use of the residence – depending on the spouses’ agreement – only if the right of the minor child(ren) to use the residence is borne in mind. If the spouses live in the residence by virtue of an ownership right or a right for lease of one or both of them and if so requested, the court will make a decision on use of the residence if the marriage is divorced.
The right of the minor child of the spouse to use the residence should be provided – as a rule and depending on his/her living conditions – in the former common residence unless he/she has another permanent resident. If the common residence is separate property or independently rented property of one of the spouses, the right to use the residence is due to that spouse. The court may entitle the other spouse to use the residence shared or exclusively only in exceptional cases and only if the child entitled to use the residence is placed in his/her custody.
Shared use of the residence
The court orders to divide use of the residence commonly owned or commonly leased by the spouses provided that it is allowed by its floor area, arrangement and number of premises. Use of the residence cannot be divided if its common use involves gross injury to the other spouse or the minor child(ren) taking the former behaviour of the spouse into account.
If use of the residence cannot be divided, the court will entitle one of the spouses to use the whole residence in co-ownership exclusively or, in the case of a tenancy, it will terminate the co-tenancy relationship and will order one of the parties to leave it.
Consideration of the right to use of residence
The spouse who is to leave the residence is entitled to receive the proportionate part of the consideration for the rights to use the residence. In the case of a residence co-owned or owned by one of the spouses, the consideration of the right to use the residence will correspond to the difference between its vacant value and occupied value. In the case of tenancy, if the contract is terminated by mutual agreement, the consideration of the right to use the residence corresponds to the financial compensation defined in the municipal decree relating to similar municipal tenement flats, irrespective of what residence the leaving spouse moves to.
The leaving spouse may claim the proportionate part of the consideration for the right to use the residence due to him/her, taking account of his/her former spouse remaining in the residence and the number of children entitled to use the residence. The leaving spouse may claim also the expenses of his/her value-added works – not yet returned – provided that such expenses are not incorporated in the consideration of the right of use. Except for cases worth of special consideration, the amount due to the beneficiary shall not be less than one-third of the consideration of the right of use, unless the court ordered one of the spouses to leave the residence separately owned by the other spouse or his/her service flat or if the residence had been leased by the spouse who remains in the residence independently before the marriage was concluded.
In the event the spouse who remains in the residence is unable to pay the consideration, or has no separate property that could be used for this purpose, or otherwise he/she requests so, the portion of the spouses’ common property due to him/her shall be decreased by the amount of the consideration. The consideration of the right of use is payable simultaneously with leaving of the residence.
