The effects of an overheated housing market in family law

Use of the marital home

During divorce proceedings, one of the spouses can request provisional exclusive use of the marital home to the exclusion of the other spouse for the duration of the divorce proceedings.

Even after the divorce, the continued use of the home can be requested, currently for a period of six months. The reasoning behind this is that this period can be used to see who wants or can be allocated the home and to arrange further settlement.

Birdnesting

The courts are therefore faced with the issue of who gets to remain in the home, who has the greatest interest in doing so and then the obvious question ‘And where should the other spouse live?’. It is likely that the other spouse will say they are unable to find other housing or cannot afford it, even if anything is available.

The courts cannot overlook this reality and often pursue creative solutions. If the home is large, arrangements may be made for bathroom use and childcare. Or perhaps the option of renting a room, where one parent stays for a week while the other parent stays in the house with the children, and every other week they swap. This is popularly called ‘birdnesting‘.

Conflicts

It is clear that these are often imperfect solutions. The spouses are obliged to make agreements on the use of the room, the use of the home and the care of the children. Making agreements is often already challenging for spouses getting divorced and everyday things like shopping can create additional conflict.

Rotterdam Court ruling

There was recently a creative ruling by the Rotterdam Court. It involved a couple who lived in a house with a parcel of land. For the sake of convenience, I will assume that this case took place outside the city of Rotterdam. The husband is self-employed and for his business he undertakes work on the land surrounding the house. The couple have two adult children who also live in the house.

The husband temporarily moved out of the house and requested exclusive use of the house, including the surrounding land. The wife also requested exclusive use of the house, including the surrounding land. The daughter of the couple also runs a business from the house. Another factor is that the husband is temporarily sleeping in a shed of a friend, which includes a bathroom.

The court considered that the wife’s interest carried more weight due to the husband having replacement accommodation and the fact that the couple’s daughter operated a business from the marital home. But the court added that on weekdays, the husband could be on the land surrounding the house on weekdays a maximum twice a day during working hours that were previously usual for him, to pick up and/or return equipment and vehicles. The court stated that it assumed that the husband would refrain from contacting his wife and children while using the land and would not be there for longer than strictly necessary.

Conclusion

While this is a creative solution, I sincerely wonder whether it is a proper solution to what seems to be an emotional divorce.

More information

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