DWELLING IN THE FAMILY HOME
The right to the dwelling of the family home, in the case of separation, usually belongs, and
where possible, to the spouse to whom children are entrusted, according to Article 155,
Paragraph 4.
This means that the right can be granted only when one spouse holds the right of ownership,
surface or usufruct on the property or enjoys the property as a result of a lease or loan
agreement.
The family home then is the property where the family normally lived, and the right of abode
also includes furnishings and everything necessary for the normal enjoyment of the property.
The right of abode in the family home can also be granted to the noncustodial spouse as a
way of fulfilling the maintenance obligation: so this is possible only if the maintenance
allowance is liquidated. However, this right granted under these circumstances should not
only be framed within the framework of the right to maintenance, but also fulfills the specific
function of protecting the interest of the spouse, who is particularly in need, not to change
living environment for reasons of health, work or family relations.
The Supreme Court, moreover, has affirmed that the children's interest in living in the family
home must be put on the back burner when it is not proportionate to the severity of the
solution for the non-custodial parent. For this reason, the court must take into account the
interests of the weaker spouse.
The granting of the enjoyment of the family home to meet the needs of the children entails a
sacrifice of the rights of the spouse who owns the property, since he or she is deprived of the
enjoyment itself. This sacrifice, however, is justified by Article 42 of the Const, which allows
the ordinary legislature to introduce limits on the right to property in order to ensure social
function.
Controversial is the nature of the right that is constituted over the family home when the non-
assignee spouse is not the owner: according to some, a right in rem is constituted (right of
habitation over the house and right of use over the furnishings), according to others, a
personal right of enjoyment is constituted. The thesis followed is on the constitution of the
tenant's own personal right of enjoyment, in favor of the assignee spouse of the family home,
if the other spouse was a tenant of the same or both:
in fact, the former takes over the lease previously entered into by the other spouse, or
becomes the exclusive owner of the lease, if it was entered into by both.
This issue assumes significance in establishing the enforceability of the right of enjoyment
against third parties.
In fact, unenforceability would provide little protection to the spouse assignee of the house,
who could react, against the alienation of the property, only by an action for damages, which
would be inappropriate compared to the protected interest of actual enjoyment by the spouse
assignee of the property " family home." The new Divorce Law has provided a satisfactory
solution to the problem, establishing that the assignment of the house is enforceable against
the third party purchaser if transcribed pursuant to Article 1599 of the Civil Code. The same
principle can also be applied when the right is assigned to the separated non-custodial
spouse. The reference to Article 1599 has been interpreted to mean that transcription is
required, for the purpose of opposability to third parties, not only when the duration of the
right is more than nine years, but this solution limits the protection of the assignee spouse,
since the right is always unenforceable if not transcribed.
Consequently, the rule would be this: the right to the family home, within the limit of nine
years, is enforceable against third parties if it results from a deed having a certain date; for
the longer duration to be enforceable against third parties, transcription is required. In any
case, the third party's right must have arisen after the establishment of the right to the house
in favor of the spouse.
Expenses for the enjoyment of the property are borne by the assignee. Measures relating to
the home are also subject to amendment and termination and must be publicized in the
property records.
