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Why is the family home protected?

Can a spouse transfer the family home without the consent of his or her spouse?

To this recurrent question in practice, the legislator has introduced strict housing protection rules in cases where a spouse would jeopardize the interests of the family.

Regardless of the matrimonial regime of the spouses and the title under which the family dwelling is occupied, it houses the family unit.

And to ensure better protection, the law has introduced provisions relating to family housing, enshrined in Article 215, Paragraph 3 of the Civil Code, which is combined with the regime of Article 1751 of the same Code.

What is a family home?

The family dwelling consists of the building used for the family's dwelling, including the furniture that furnishes it. This refers to furniture intended for the use and decoration of the latter. More specifically, the Act applies to the spouses' principal residence, excluding the secondary residence and the furniture furnishing it.

Moreover, in the case of a separate life, i.e. if the spouses do not live together, the judge must determine what could constitute their family home.

What acts are prohibited on the dwelling and the furniture furnishing it?

In reality, it is not the housing, nor the furniture furnishing the housing, that is protected, but moreover the rights that relate to these elements. These rights are property rights that are available on these properties.

The following are therefore prohibited:

  • The acts of disposition of the family home, the purpose of which is the sale of the latter, the sale with usufruct to the sole owner and seller spouse, the donation and finally the promise to sell the family home.

  • Also, a spouse may not grant a residential lease to a third party on the family dwelling without the authorization of his or her spouse.

  • A spouse may not terminate the insurance contract for the family home without the consent of the other spouse. The consent of the other spouse does not necessarily require a written agreement. It can be tacit provided it is certain (but the written form provides probationary security).

In addition to these prohibitions, Article 215, Paragraph 3 (which duplicates article 1751 of the Civil Code) establishes the principle of co-ownership of a residential lease. This means that the spouses have the same rights to the living space together.

This is why the lease, even if it is signed by only one of the spouses, cannot be terminated or assigned without the agreement of the other spouse.

Similarly, the landlord may not grant leave to only one of the spouses without the consent of the other.

It should be noted that the protection of family housing applies only to spouses. This means that creditors can seize the family home if it falls within the scope of their general right of lien.

In addition, the housing protection remains in place for the duration of the marriage. It also applies in the event of legal and de facto separation, as long as the divorce has not yet been pronounced.

What are the consequences of violating legislative provisions?

Deeds of disposition, entered into without the consent of the other spouse, are void because they are subject to co-management, i.e., joint management by the spouses. A spouse whose consent has not been given prior to the performance of the act may request its nullity if it jeopardizes the interests of the family.

It is therefore a relative nullity, i.e. only the spouse, whose interests are to be protected by law, can apply for the nullity of the disputed act.

He must nevertheless prove that he has a current interest in the application for a declaration of invalidity of this act.

The period for bringing an action for annulment of the deed is one year from the day on which the husband became aware of the disputed deed. This period is two years for all acts concerning the furniture furnishing the dwelling.

The law has adjusted these provisions to prevent a single spouse from endangering the interests of the family.

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