The Complexity of the Family Home

Facing a separation or divorce means making complex decisions that will have a lasting impact on the entire family's life. Among these, one of the most delicate and a source of concern is undoubtedly the fate of the family home, especially when it is burdened by a mortgage. We understand that your concern is not just economic, but relates to the stability and well-being of your children. As a family lawyer in Milan, lawyer Marco Bianucci deals with these situations daily, providing clear legal guidance to protect the primary interests of minors and find a sustainable balance for the spouses.

The Guiding Principle: The Best Interests of the Children

Italian law, particularly Article 337-sexies of the Civil Code, establishes a fundamental principle: the assignment of the family home is decided by primarily considering the best interests of the children. The legislator's and the judge's objective is to ensure that minors, especially at a young age, have the opportunity to retain the domestic environment in which they grew up, thus maintaining their habits and the continuity of social relationships. Consequently, the right to use the home is generally granted to the custodial parent, i.e., the one with whom the children predominantly live, regardless of who the actual owner of the property is.

Assignment of the Home and Mortgage Obligation: a Crucial Distinction

It is essential to understand a technical but fundamental aspect: the judge's order assigning the home does not alter the contractual obligations towards the bank. If the mortgage is co-owned, both spouses remain legally obligated to pay the installments. The bank is a third party, external to the separation agreements. However, the judge, in defining the economic arrangement between the spouses, will take into account who will continue to pay the mortgage. Often, the installment paid by the non-custodial spouse is considered as a component, total or partial, of the alimony for the children or for the economically weaker spouse.

The Approach of the Bianucci Law Firm

The approach of lawyer Marco Bianucci, an expert in family law in Milan, is based on a personalized strategy aimed at preventing future conflicts and ensuring fair and lasting solutions. Each case is analyzed in detail, evaluating not only the legal aspect but also the family and financial dynamics. Our priority is the protection of minors, ensuring that their stability is not compromised. We work to find consensual agreements that clearly define the division of expenses, including the mortgage installment, to avoid uncertainties. If an agreement is not possible, we assist the client in judicial proceedings with a solid defense, aimed at obtaining a ruling that reflects the family's real needs.

Frequently Asked Questions

Who is assigned the family home in case of separation with children?

The family home is generally assigned to the parent with whom the children are predominantly placed. This decision is made to protect the minors' domestic environment and ensure their stability, regardless of who owns the property. In the absence of children, or with adult and financially independent children, the home is not assigned and follows general property rules.

Who pays the mortgage for the home assigned to the other spouse?

The obligation to pay the mortgage to the lending institution remains with whoever signed the contract. If the mortgage is co-owned, both spouses remain jointly liable. However, the judge may stipulate that the installments paid by the non-resident spouse constitute part of the alimony, thus defining the overall economic balance between the parties.

What happens if the family home is owned by the in-laws?

Even if the property is owned by third parties, such as the parents of one of the spouses, the right of assignment to the custodial parent of the children may prevail. This occurs when the property has been granted as a gratuitous loan for use with the specific purpose of being the family home. Established jurisprudence tends to protect the continuity of housing for children even in these cases.

Does the assignment of the family home have an economic value?

Yes, the enjoyment of the family home represents significant economic value. The judge takes this into account when determining alimony. The spouse who benefits from the assignment has an economic advantage (saving rent) that affects the assessment of their income capacity and, consequently, the amount of any alimony in their favor or against the other spouse.

Request a Strategic Consultation in Milan

Managing the assignment of the family home and the related mortgage requires expertise, clarity, and a clear strategy to protect your rights and, above all, your children's future. If you are going through this delicate phase of your life, it is essential to rely on a professional who can guide you towards the most appropriate solution. As a family lawyer, lawyer Marco Bianucci offers an in-depth analysis of your case to define the most effective legal path. Contact the Bianucci Law Firm, located in Milan at Via Alberto da Giussano, 26, for an assessment of your case.