Preferential allocation of the family home: what do you need to know

What is preferential allocation?

Preferential allocation means that one of the ex-partners in a divorce gets the right to take over the family home, even if both partly own the property. This can be done in some cases without having to sell the property. However, the ex-partner who takes over the home must then compensate the value of the other partner's share (usually with an imposition). The main purpose of this arrangement is to ensure stability, for example for minor children, by preventing them from losing their home.

1. Married couples

Both couples married under the statutory system (community of property) and under a property separation system can apply for the preferential allocation. Until 2018, only married couples under the community property system could take over the family home preferentially. Since then, this possibility has been extended to all married couples, regardless of their matrimonial system. When making this decision, the court looks at several factors, such as the interests of both partners, their financial capacity, whether minor children are involved and whether there are emotional ties to the home.

2. Legal cohabitants

Historically, preferential allocation was only available for married couples. Legal cohabitants, despite certain (limited!) legal benefits, were not entitled to this preferential allocation. Legal cohabitants could only voluntarily agree among themselves who took over the property. This meant that when legal cohabitants broke up, they were often forced to sell the property, even if one of the partners preferred to keep it.

However, a recent Constitutional Court ruling changed this. The Court ruled that the distinction between married couples and legal cohabitants was unconstitutional, as the legislator could not provide a reasonable justification for excluding cohabitants. As a result, legal cohabitants can now also apply for the preferential allocation, and are prevented from having to bid against each other or third parties in a forced sale.

3. De facto cohabitants

For de facto cohabitants - couples living together without legal recognition - there is no preferential allocation mechanism. In their case, the usual civil law rules for the division of property apply, which usually means either selling the property or one of the partners taking over the other's share.

How is the decision made?

The family court bases its decision on several criteria, including:

• Financial capacity: can the partner who wants to take over the property pay the imposition fee?
• Interests of the children: if there are minor children, this can be a decisive factor. stability for the children is often weighed heavily.
• Ownership history: if the property was in one partner's name or purchased with personal funds, this may play a role.
• Other emotional of professional factors: e.g. if one of the partners runs a self-employed business from the home, this may be an argument to keep the home.

Possible complications

One of the most common problems is when both partners want to take over the property. In this case, the court will have to make a decision based on the interests of the parties involved. If neither can take over the property, often the only option left is a sale, which can be less favourable in some cases, especially in a forced sale.

In specific cases, such as partner violence, the situation can be further complicated. In some cases, a victim of partner violence can apply for preferential allocation. This offers additional protection to victims of domestic violence, who might otherwise find themselves in an insecure housing situation.