1. General introduction
During the 1960s and 1970s family homes and household assets were given special protection due to the reforms relating to the rights and duties of spouses and marital property law. This protection applies both to the family home owned by one or both spouses and to rented homes.
Not all legal systems define the term ‘family home’ in the same way. Many legal orders, such as those in Belgium (Art 215 § 1(1) Code civil) and France (Art 215(3) Code civil) only safeguard primary residences and not second homes. In some legal systems such as the Danish (§ 18 Law on the effects of marriage), English and Welsh (Matrimonial Homes Act 1983) and Dutch (Art 88 Burgerlijk Wetboek (BW)) jurisdictions, all kinds of family homes enjoy legal protection.
There is a strong tendency to protect family homes of people living together in cohabitation and especially of those established in a registered partnership. Examples are found in Belgium (Art 1477 Code civil) and England.
2. Protection of the family home during the marriage
Most continental legal systems protect family homes that belong to the personal property of one of the spouses or to both spouses as community property by applying the general rules on the rights and duties of the spouses or the matrimonial property law. Freedom of disposal is restricted in this regard. Sales and often other legal acts, such as tenancy, can only be performed with the other spouse’s consent, as in Belgium (Art 215 § 1(1) Code civil), Denmark (§ 18 Law on the effects of marriage), France (Art 215(3) Code civil), Lithuania (Art 3.36 CC), the Netherlands (Art 88(1a) BW), Norway (§ 32 Law on marriage), Austria (§ 97 ABGB), Portugal (Art 1682B Code civil), Sweden (§ 5, §§ 1–2 Law on marriage) and Switzerland (Art 169(1) Swiss Civil Code (ZGB)). The same applies to household assets located in the family home, as it is explicitly codified, eg in Belgium (Art 215, § 1(2) Code civil), Denmark (§ 19 Law on the effects of marriage), Germany (§ 1369 Bürgerliches Gesetzbuch (BGB)), the Netherlands Art 88(1a) BW), Portugal (Art 1682–1682A Code civil) and Sweden (§ 5 No 3 Law on marriage). In Germany’s statutory marital property regime of accrued gains (Zugewinngemeinschaft), the family home is only protected if it constitutes more than 85 to 90 per cent of a spouse’s property. In those cases, disposing of the family home is presumed to be a disposition of the property as a whole, which can only be performed with the other spouse consenting (§ 1365 BGB).
Several legal systems also protect rented family homes and also assign tenancy rights to both spouses in cases where the lease has been concluded by only one of them—even before their marriage. This is, for example, the situation in Belgium (Art 215 § 2(1) Code civil), France (Art 1751 Code civil), Greece (Art 612 CC), Norway (§ 41 Law on marriage) and Switzerland (Art 169 ZGB).
3. Protection of the family home after divorce
In cases where the marriage is dissolved by divorce, many legal orders allow preferential allocation (in return for a consideration) of a family home that is part of the community assets to one of the spouses, as in Belgium (Art 1447 Code civil) and Denmark (§ 70a Law on distribution). In other systems, this is also possible when the family home belongs to both spouses as joint property, as, eg, in France (Art 267 Code civil). When the family home is the exclusive personal property of a spouse, most legal systems do not allocate property rights; mostly, just temporarily limited tenancy rights are assigned as in France (Art 285 Code civil). An important exception is the common law, where the court can issue a property adjustment order assigning a family home that is part of the personal property of one spouse to the other spouse. Austrian and Norwegian law also have these transfer possibilities with special regard to children’s welfare. In German law this is only possible in cases of exceptional hardship (§ 1568a (2) BGB)
Most legal systems, eg German and French, allow allocations of tenancy rights.
In case the marriage is dissolved by death, there are comparable rules that allow the preferential allocation of a family home that is part of the community assets. The inheritance rights of the surviving spouse mostly encompass the family home which belonged to the deceased (succession law). Where the surviving spouse inherits full property, he can claim the property of the family home, as it is in England, or receive a preferential allocation, as in France (Art 1476 Code civil). If he inherits a usufruct, the family home is mostly contained, as in Belgium (Art 1446 Code civil). In cases where the law of succession is insufficient, the legal systems often contain a right of inhabitation as in France (Art 764 Code civil). In Belgium, the usufruct relating to the family home is even protected by the compulsory portion of the surviving spouse (Arts 915bis § 2 Code civil).
There is a strong tendency to assign the surviving spouse a tenancy right relating to the family home by excluding the other heirs, as in Germany (§ 563(1) BGB).
4. Family home, registered partnership and cohabitation
Registered partnerships (cohabitations) often offer the same protection of the family home as do marriages, as is the case in Belgium, England and Wales, Norway, Sweden and Switzerland. The surviving registered partner often enjoys—as does the surviving spouse—a preferential allocation of tenancy rights relating to the family home to the exclusion of other heirs, as in Germany (§ 563(1) BGB).
Cohabitations do not provide the same level of protection. In many legal orders, however, some minimal safeguards are granted by rules relating to the transfer of family homes (Norway) or the continuance of the lease after the dissolution of the cohabitation (France, Norway). A protection comparable to marriage can be found in Swedish law.
5. Family home and domestic violence
During the last years, most legal systems have adopted rules that allow a spouse or partner guilty of domestic violence to be removed from the family home by judgment or administrative order, as in Austria (§ 38a Sicherheitspolizeigesetz), Belgium (Art 223(3) Code civil), England and Wales (Art 33 Family Law Act 1996), France (Art 220-1(3) Code civil), and Germany (§ 1361b (2) BGB). Moreover, in case of divorce, some legal systems deny the preferential allocation of the family home to spouses guilty of domestic violence, as in Belgium (Art 1447(2) Code civil).
6. Family home and human rights
Recommendation No R(81)15 of the Committee of Ministers of the Council of Europe (institutional aspects) of 16 October 1981 requested the Member States to pass legislation which prevents disposals of the family home and household goods without the consent of both spouses.
Due to Art 8 ECHR, it is impossible to prohibit persons from living together with their partner in rented homes. Contrary clauses in a lease are in violation of the right to respect for the tenants’ private and family life. Legislation that allows surviving partners to continue the lease may not exclude the same-sex partner (same-sex relationships) in light of Arts 8 and 14 ECHR—ECtHR No 40016/98 − Karner.
Making reference to the Member States’ margin of appreciation, the ECtHR has found that rules on the allocation of the family home after a divorce need not be extended to cohabitees by analogy—ECtHR No 37784/97 − Saucedo Gómez. See also ECtHR No 45851/99 – Shackell and No 55501/00 – Mata Estevez.
Dieter Henrich and Dieter Schwab (eds), Der Schutz der Familienwohnung in europäischen Rechtsordnungen (1995); Maria Giovanna Cubeddu, La casa familiare (2005); Rembert Süß and Gerhard Ring (eds), Eherecht in Europa (2006); Isabell Götz and Gerd Brudermüller, Die gemeinsame Wohnung (2008); Rembert Süβ, Erbrecht in Europa (2nd edn, 2008); Katharina Boele-Woelki, Bente Braat and Ian Curry-Sumner (eds), European Family Law in Action, IV, Property Relations between Spouses (2009).