Divorce with children: what happens to the family home?

A divorce feels uncertain, especially if you wonder whether the other can simply sell the home. The good news: they cannot. Belgian law gives the family home special protection (article 215 of the old Civil Code). The family home is the joint main residence, the place where you actually live as a family.

This protection means that neither partner may sell, rent out, give away, or mortgage the home without the explicit consent of the other. This applies even if the home is legally only in one partner's name. The person who is the owner on paper cannot decide alone. The household contents also fall under this protection.

This rule applies to both married couples and legally cohabiting partners. If you are in a de facto cohabitation without marriage or a declaration of legal cohabitation, the situation is different and the protection is more limited. If you are unsure about your legal situation, have it checked by your notary or lawyer.

In every decision about the children and the home, the family court primarily looks at the best interests of the child. For children, continuity is often the most important thing: their school, their friends, their room, and their daily routine. Peace and predictability help them get through a difficult period better.

Therefore, the residence arrangement for the children is considered together with the question of who stays in the home. In many families, joint custody is chosen, where the children stay alternately with each parent, but that is not an automatic rule. The specific arrangements depend on your situation, the age of the children, and what is practically feasible.

If you can work it out together, you can record the arrangements about residence and maintenance contribution in an agreement. If not, the family court decides. A family mediator can be of great help here: they guide you towards arrangements that work for both parents and the children, often without a heavy court procedure.

As long as the divorce is ongoing, there must be clarity about who stays in the family home. Sometimes this can be done by mutual agreement. If communication is difficult or the atmosphere is too tense, you can ask the family court for provisional measures.

The judge can then determine that one partner, possibly together with the children, temporarily stays in the home, while the other partner goes to live elsewhere. In many families, the parent with whom the children mainly reside stays in the familiar environment, precisely for that stability. However, that is not a fixed rule: each situation is assessed separately.

We want to clear up one misunderstanding. Staying in the home during the divorce does not give you an extra right to take it over or buy it later. Conversely, the one who temporarily leaves does not lose their property rights. Leaving to keep the peace does not mean you lose your share of the home. If in doubt, discuss this with your lawyer before you move.

Provisional measures are temporary arrangements that apply as long as the divorce or the factual breakdown lasts. You can request them both outside and during a divorce procedure. They provide guidance in a period when nothing is definitively settled yet.

Such measures can include, among other things, who stays in the family home, where the children reside, the arrangement of parental authority and contact rights, and the maintenance contributions for the children and possibly for a partner. The judge aligns everything, with the best interests of the children as a guide.

These measures are by definition temporary and can always be adjusted when the situation changes, at the request of either partner. They are therefore not a final decision about the home itself, but they ensure that the daily life of the children can continue while the rest is being sorted out. For the application and the procedure, it is best not to go alone: a lawyer helps you formulate your request correctly.

The provisional arrangement is there to bridge the transition. Ultimately, the home must be divided, and there are roughly two ways to do that.

The first is selling. The home is sold and the proceeds are divided according to each person's share, after deducting the outstanding loan. This gives both partners a clean start, but it does mean a move for the children. Timing and communication are important here to keep the impact gentle.

The second is buying out. One partner takes over the home and pays the other their share, usually by refinancing the existing loan in one name. This can be valuable if you want to keep the children in their familiar environment, but it must be financially feasible: the bank must be willing to grant the loan to one person alone. When both partners want to take over the home and you cannot reach an agreement, under certain conditions a priority rule can apply (the preferential allocation), where the judge or notary takes into account the family interest, often in favor of the parent with whom the children mainly reside.

Whichever path you choose, make sure you are well informed about the value of the home and the financial consequences. Our free comparator helps you compare different home buyers if selling turns out to be the best option, so you can make a choice with peace of mind.