The family home is the one where the center of the family life of the spouses (or de facto partners) is permanently, stably, and durably located, as stated in Article 1672 of the Civil Code.
The family home retains its importance even after the dissolution of marriage or de facto union, and is granted special protection, revealed and supported in various legal instruments aimed at preserving the interests of the ex-spouses and children, through the consideration of the fate of the family home and the terms of its allocation.
In this context, the judge may, whenever considered appropriate, during divorce proceedings, either on their own initiative or at the request of one of the parties, establish a provisional arrangement regarding the use of the family home.
In cases of mutual consent divorce, the ex-spouses must submit an agreement regarding the destination of the family home along with the divorce petition at the civil registry office.
Thus, the court will consider several factors:
• In the case of the family home being subject to a lease agreement: the destination of the home may be decided by mutual agreement, or in the absence of such agreement, by the court’s decision. The court will take various factors into account in determining the lease: who will suffer most from the instability created in terms of the family residence; who has been assigned the residence of the children; the age and health status of the ex-spouses; and whether either of them has another home, among others. The lease agreement is transferred to the ex-spouse designated by the court, without the need for the landlord's consent.
• In the case of the family home not being subject to a lease agreement: regardless of whether it is a common asset of the couple or a personal asset of one of the spouses, the other spouse may request its lease. The rent will be set according to the circumstances of the case, and it will then be considered in the alimony obligation if requested.
• If it is a common asset of the ex-couple, the ex-spouse leasing it will pay half the market rent.
• If it is the exclusive property of one of the spouses, the ex-spouse must pay the full market rent.
IT SHOULD BE NOTED THAT:
Portuguese courts consider that the judge may, based on criteria of fairness and justice, and after considering all the personal and financial circumstances of the spouses, choose to issue a provisional decision that allows the more disadvantaged spouse to use, free of charge, the property that is the family home, even if that property is solely owned by the other spouse..
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