Jean-Yves provides an overview of the criteria applied by the judge for the allocation of the matrimonial home when a separation takes place.
In principle, marriage leads to spouses living under the same roof, which is commonly referred to as the matrimonial home.
Hence, in case of separation, the legal question that must be answered concerning the matrimonial home is which spouse can stay in and which spouse must move out. Indeed, if the spouses cannot agree on this question, it is the judge that will allocate the matrimonial home to one of them.
In order to do so, the judge will however not directly consider the property rights between the spouses or their potential contractual relationship.
For example, if the husband is the legal owner of the matrimonial home and the spouses decide to separate, the judge is not bound by the property rights of the husband and can order him to move out, at least for the time of the separation and until the final decision on the divorce.
To determine which spouse the matrimonial home shall be allocated to, the judge will examine three criteria, developed through many years of case law by Swiss courts.
These criteria must be examined through a reasoning “by elimination”, meaning that it is only if the first criteria is not considered by the judge to give a clear result as to which spouse shall be allocated the matrimonial home that the second criteria is analyzed, and so on.
The judge will first try to determine to which spouse the matrimonial home is the most useful.
The matrimonial home’s utility must be examined objectively, with the family members’ concrete needs. The elements taken into account are first and foremost, the interest of the child, entrusted to the parent who is claiming the attribution of the home, to be able to stay in a stable environment. What could also be weighed in is the professional interest of one of the spouses, who might work at home (and not just from home), or the interest of one of the spouses to stay in the matrimonial home, which has been specifically equipped for health reasons.
It should be noted that even if a spouse has left the matrimonial home in order to avoid conflict or violence, there shall be no advantage as to the attribution of the matrimonial home of the spouse who stayed in until the Court decision.
As stated earlier, it is only if the first criteria does not conclude in a clear result in favor of a spouse that the judge will look into the second one.
In this situation, the judge will try to determine to which spouse the requirement of moving out can reasonably be imposed.
The judge will consider all the circumstances of the case, in particular the advanced age or the health condition of one of the spouses. The health condition does not necessarily mean that the home has been specifically equipped, but it should be serious enough for the spouse not be asked to move out. The judge will also examine if one of the spouses enjoys an emotional bond with the matrimonial home, for example when it has been the family home for generations or that one of the spouses was already living in the matrimonial home before the marriage.
Swiss case law has specified that economic motives are usually irrelevant, except when common financial resources do not allow spouses to keep their matrimonial home because of the separation.
If the second criteria does not conclude in a clear result either, the judge must therefore consider the legal status of the matrimonial home, and allocate the home to the spouse who is indeed its legal owner.
When spouses are both tenants of the matrimonial home, only the two first criteria are examined.
The lease contract does not need to be updated as the separation has no effect on the contract. It is only with the divorce that a lease contract can be attributed to one of the spouses. In both cases however, the landlord has no right to legally oppose the judge’s decision.
After the allocation has been made to one or other of the spouses, the judge will set a deadline for the other spouse to leave the matrimonial home, which, depending on the circumstances, can vary between a few weeks to three months.
It must be stressed that these criteria represent guidelines that need to be examined by the judge. Nonetheless, the judge will always assess the situation based on all of the case’s specific circumstances and will put all the different interests in balance, especially when there are children.
It is also important to note that the spouse to whom is attributed the matrimonial home does not become its legal owner or sole tenant in place of the spouse that is required to leave. The spouse who stays in must follow his or her obligations and owes accounts to the other spouse.
If asked by one of the spouses, the judge can also allocate or divide the furniture of the matrimonial home between them.
The decisive criteria will be the presence – or absence – of children, the personal needs of the spouses and the possible emotional bonds with certain objects or furniture.
In Swiss law, furniture is broadly defined and includes all objects and furniture that are used by the family inside the matrimonial home.
However, the division of furniture can also include the car or the domestic animals.
As it is the case for the matrimonial home, the transfer of an object or of furniture does not mean that the spouse who has been allocated such an object or furniture becomes its legal owner.
In fact, ownership and legal property are settled through the divorce proceedings and not during the separation proceedings.
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10/11/20 – Jean-Yves Hausmann, attorney-at-law at OA Legal