Family Home, rights in marriage and de facto union

The family home is one where, permanently, stable and lastingly, is the center of family life. The members of the couple must, by mutual agreement, choose the residence of the household, taking into account, in particular, the professional requirements and the interests of the children. And in the event of a divorce, rupture of the de facto union or death, there are rights to the family home that can be exercised. But what are they and how can they be applied? In a simple way, we now explain everything in this article, with legal grounds.

Unless otherwise stated, spouses (or de facto partners) must adopt the family's residence. "In the absence of agreement on the establishment or change of the family's residence, the court will decide at the request of either of the spouses (or unmarried)", begins by explaining to Belzuz Abogados* in this article prepared for idealista/news.

What rights do I have over the family home in the event of a divorce and how can I exercise them?
In the event of a divorce by mutual consent, the spouses must agree on the destination to be given to the family home.

Own home of a member or couple
The agreement for the assignment of the family residence may be established upon the execution of:

a lease agreement (stipulating a monthly income);
lending (free and without consideration);
It may also result in the assumption by one of them and, in return for this attribution, the payment of all charges inherent to the house such as:

IMI;
condominium expenses;
water consumption;
electricity and gas;
bank loans owed for its acquisition.
A duration may also be established for this attribution (until the sharing is carried out or until the sale of the property, for example).

In the absence of an agreement for the divorce or if the spouses do not reach an understanding as to the destination to be given to the family home, the divorce process will have to be filed in court. In this case, it is up to the court to decide, taking into account the needs of each of the spouses and the interests of the children.

rented house
The agreement may involve the transfer or concentration in favor of one of them of the lease on the family home.

In this case, in the absence of an agreement, it is up to the court to decide, taking into account the needs of each of the spouses, the interests of the children or other relevant factors.

In order to assess the ex-spouse's "need for each one", the court must consider the income and earnings of each one, as well as the respective charges, and this need must configure a current and concrete situation and not an eventual or future;
To assess "the children's interests", the court must assess who was assigned custody of the minor and whether it is in the child's interest to stay in the family home with the parent to whom he was entrusted, thus allowing the minor to continue to live with stability, in the housing he was used to, without further changes beyond the family situation itself;
Only when the needs of the ex-spouses are the same or substantially the same should the court consider "other relevant factors", namely, age, health status, the location of the home in relation to the place of work of each of the ex-spouses. -spouses and the fact that one of them has another house where he can reestablish his residence.

What rights do I have over the family home in the event of my spouse's death?
At the time of sharing, the surviving spouse has the right to live in the family's home and the right to use the respective contents, and must return to the co-heirs if the amount received exceeds that of their inheritance share and share, if any.

What rights do I have over the family home in the event of a break-up of the partnership and how can I exercise these rights?
Firstly, and in order to exercise the right to a family home, it is important to understand whether your case can be legally framed as a de facto union.

So what is a de facto union?
De facto union is the legal situation of two people who, regardless of sex, have been living in conditions similar to those of spouses for more than two years. These two people must form a couple, live in the same house and have a life in common, that is, they must live in communion of bed, table and room.

In addition to these requirements, it is also necessary that certain circumstances that prevent the production of the legal effects arising from the de facto union do not occur. These circumstances or impediments are as follows:

Age under 18 at the date of recognition of the de facto union;
Outstanding dementia, even with lucid intervals and a situation of monitoring of the age of majority, if so established in the sentence that decreed it, unless after the beginning of the union;
Undissolved marriage, unless the separation of persons and property has been decreed;
Kinship in the straight line or in the 2nd degree of the collateral line or affinity in the straight line;
Previous conviction of one of the persons as the author or accomplice for intentional homicide, even if not consummated, against the spouse of the other.
Once the de facto union is verified, it is important to understand if the family house is owned by one of the de facto partners, both or leased.

Own home
In the absence of agreement, any of the members of that de facto union may request the court that the family home be leased.

In fact, the court may lease to any of the partners at their request, the family's home, whether shared or owned by the other, considering, in particular, the needs of each of the partners and the interest of the couple's children (if any).

rented house
The parties may agree that the tenant's position will belong to either of them, and the court will decide, in the absence of agreement.

The court will decide on this matter, taking into account the needs of each one, the interests of the children and other relevant factors, in the terms already stated above for the case of divorce (see point II).

What rights over the family home do you have in the event of the death of your partner?
Rented family home
In the event of the death of the common-law tenant, the surviving common-law partner is granted special protection.

In fact, since that property was leased by the deceased common-law partner, there is no termination of the lease agreement and the legal position of the lessee, rather there is room for the maintenance of this contract with the surviving common-law being called.

However, for this to happen, in addition to the death of the de facto partner, the following requirements must be met:

the de facto union must be at least 1 year old;
the de facto union must have been dissolved by the death of the tenant's partner and not for any other reason;
the deceased partner, at the time of his/her death, must be the holder of the legal position of tenant over the property in which the family home is located.
Family home owned by the deceased partner
In the event of his death, the de facto union survivor is granted special protection, namely:

a real right to live in the common house and a right to use the contents: these rights are recognized for a minimum period of 5 years, and this period may be extended when the de facto union has lasted more than 5 years, lasting , then, for a time equal to the duration of the union. These rights may be valid for a longer period by court decision, which will occur, exceptionally, for reasons of equity, considering, in particular, care provided by the surviving member to the deceased person or his or her family members, and the special grace period in which the surviving member meet, for any reason. However, this real right to housing will not be granted to the surviving member if he/she has his/her own home in the area of ​​the respective municipality of the family home (in the case of areas of the municipalities of Lisbon or Porto, the neighboring municipalities are included);
a right to enter into a lease in relation to the property in which the family home was located, extinguishing the real right to housing that he owned;
a legal preemptive right in the event of disposal of that property for the entire time that the de facto partner survives to live in the property, namely as a user resident and as a tenant.

*Susana Mendes Inácio, Family Law Department at Belzuz Abogados S.L.P. – Branch in Portugal

**The information published by idealista/news does not constitute legal advice