Who gets the matrimonial home?
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Who gets the matrimonial home?

When a couple separates, one of the main bones of contention is the matrimonial home, simply because everyone needs a place to live in, especially when one is used to that place and has nowhere else to go. Who gets the matrimonial home? The husband or the wife? And what about the children? Will they be forced to leave the matrimonial home? Does the concept of best interests feature when allotting the matrimonial home to one of the spouses?

In Fenech pro et noe vs Fenech, decided by the First Hall, Civil Court on July 30, 2001, the court ruled that, when there is a request to the court to order the eviction of one of the spouses from the matrimonial home, although the best interests of the minor child who is living in the said matrimonial home is a factor of certain material importance, the interest of the minor is not the only consideration that should direct the court to make a decision, another consideration being the interests of the person being evicted.

Apart from the usual reasons regarding the demand for eviction from the matrimonial home, such as domestic violence on one of the spouses or on the minor child or corruption of the minor child by one of the spouses, the court stated it will also order a spouse to be evicted if it seems to the court that the married couple cannot live together in the same home and the interests of the family and of the child require that such an eviction takes place.

There are several issues to be considered when dealing with the matrimonial home. First and foremost, one must determine whether the home is the paraphernal property of one of the spouses, with the basic meaning of the term paraphernal being: it was owned by one of the spouses before they got married.

However, if the matrimonial home was bought during marriage or by both of them before getting married, then the matrimonial home is said to be co-owned, that is, belonging to both spouses. The matrimonial home can be transferred to the other spouse, it can be sold outright to a third party or sold by judicial auction.

According to article 3A (1) of the Civil Code, the matrimonial home must be established with the mutual consent of both spouses, taking into consideration the needs of the spouses and the primary interest of the family. Therefore, one of the matrimonial home's interests is a familial one. In Il-Pulizija vs D'Agostino, decided on November 21, 2003, by the Criminal Court of Appeal (Inferior), the court said that when the spouses establish their matrimonial home, both of them have the right to share equally in the use of the home.

Therefore, the court added, the spouses should be deemed to be co-possessors, independently as to whether the matrimonial home is owned by one party or another.

The court said that because they are co-possessors, each party has the right to make reasonable use of the home in such a way as not to deprive the other party of the enjoyment of the matrimonial home. The spouses remain such co-possessors even if, during separation proceedings, one of the spouses leaves the matrimonial home, as long as there is not an order by the competent court which determines which spouse should remain in the home pendente lite (that is, while the litigation is pending) with the exclusion of the other party.

When during separation proceedings one of the parties leaves the matrimonial home and there is no order by the court on such exclusion, the other party still living in the matrimonial home cannot impede the party outside the matrimonial home from having free access to it. Therefore, the court added, even if the party who left the matrimonial home does not have the material possession of the house and of the movables found inside it, s/he still have the legal possession of it.

However, the court went on to say that the party still living in the matrimonial home can take any reasonable precautions to make sure that third parties do not have any access to the said matrimonial home. This is to protect the familial interests and the children's interests not to be exposed to third parties.

The home is "almost always the most important ingredient of whatever financial mix is to be proposed since it will usually be not only the most valuable asset but also potentially... a roof for one of the parties... Only rarely is there so much money available that the destination of the home is completely irrelevant." (Frances Burton, Family Law, Great Britain, 2003, p. 249).

In allocating the matrimonial home, therefore, not only the interests of the child are taken into account but also those of the family, including those of the spouse who is not living in the matrimonial home.

The author is a lawyer and a published author with a special interest in family law and child law.

annmarie.mangion@gmail.com

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