Occupancy compensation calculation in divorce

As a couple, you often own the home together, each for half. After a divorce, ownership does not change immediately: until the home is sold or assigned to one of you, you remain co-owners. This is called undivided co-ownership.

If one ex-partner stays alone in the house, that person uses something that half belongs to the other. The departing partner may be paying rent elsewhere, while their share of the home yields nothing. The occupancy compensation, also called occupation compensation, smooths out this imbalance. It is not a fine or alimony. It is simply a fair compensation for the exclusive use of a property you own together.

The rules are set out in the Belgian Civil Code (including articles 3.69 and 3.71, formerly article 577-2 of the old Civil Code). This is federal civil law, so the basic principles are the same in Flanders, Wallonia, and Brussels.

The compensation comes into play as soon as three conditions are met: you are co-owners of the home, you no longer live together, and one of you uses the home exclusively from then on. If you continue to live together, or if both of you leave the home empty after the breakup, the situation is different.

Important: it concerns exclusive use, not who is the owner on paper. Legal cohabitants who own a home together can therefore also face occupancy compensation if one of them stays in the house after the breakup.

A common misunderstanding is that the compensation always runs from the day someone leaves. That is not automatically true, and the start date depends on your situation. The next section covers this.

The start date is an important detail because it determines over how many months the calculation is made.

For married couples, the principle is that the occupancy compensation runs from the initiation of the divorce proceedings, and not automatically from the day one of them left the house. The months between the actual departure and the start of the proceedings do not count in principle, unless otherwise agreed or decided.

For cohabitants, the emphasis is more on the date of the actual separation, the moment you effectively go your separate ways.

You can agree on a different start date together, and in case of disagreement, the judge or notary can set that date. The compensation continues as long as one ex lives alone in the home, until the home is sold or definitively divided. Because the exact start date often makes a difference of several thousand euros, this is a point to have confirmed in writing by your own lawyer or notary.

The calculation starts from the rental value: what would this home yield per month if you were to rent it out on the private rental market? You determine this rental value by mutual agreement, or have it established by the notary or an expert, often a land surveyor.

Because each ex-partner owns half, the occupancy compensation in practice amounts to half of that rental value. The person who stays compensates, in other words, for the part of the home that belongs to the other. The formula looks like this:

Occupancy compensation per month = half of the monthly rental value

The compensation is rarely transferred month after month. Usually, the total amount is settled during the liquidation and division, the moment when the notary closes all accounts between you. Often, the compensation is then offset against other items, such as the repayment of the mortgage loan that the staying partner bore alone during that period. This makes the final settlement sometimes more complex than the bare formula suggests.

Suppose your home would yield about 1,200 euros per month on the rental market. Anna stays in the house after the divorce, Bram leaves.

• Rental value: 1,200 euros per month
• Half of the rental value: 600 euros per month
• Anna uses the home alone for 18 months, until the sale

The occupancy compensation Anna owes Bram in this example amounts to 600 euros x 18 months = 10,800 euros. This amount is not paid out separately but is settled in the final account at the notary. If Anna, for example, bore the full mortgage burden alone during that period, part of that can be offset against the occupancy compensation.

This is a simplified example with round figures, intended to show the mechanism. The actual rental value, the exact start date, and the offsetting with other costs together determine the final amount. So never blindly rely on these figures for your own situation.

Occupancy compensation seems simple on paper, but in practice much depends on details: the correct rental value, the start date, the duration, and the way everything is offset against the loan and other costs. Precisely because a divorce is already emotionally heavy, it pays to have those figures worked out calmly and correctly.

This guide gives you general, factual explanation of the Belgian rules, but is not legal or tax advice. For your specific situation, it's best to consult your own notary, lawyer, or accountant. They know your file and can calculate and record the compensation correctly.

Are you thinking about selling the home to finalize the divorce financially? Then we can help you further. We are a neutral comparator and do not buy houses ourselves. Through our free comparator, you can present your home to various home buyers, so you quickly and without hassle get an idea of what your house is worth.