Separation or the end of a cohabitation often brings up a very practical question: who stays in the home where the family has lived? The answer does not necessarily coincide with the name indicated in the purchase deed. Property ownership and assignment are two different situations: the first concerns the asset, the second regulates its enjoyment to protect, first and foremost, the continuity of the children's lives.
I want to help you distinguish what the home order can do from what it cannot do. We will see when the dwelling can be assigned, what changes if it is exclusively or jointly owned, how to deal with expenses and damages, and why a new cohabitation should not be read with simplistic solutions. Understanding these steps avoids confusing the right to live in the property with the right to sell it, divide it or demand its eviction.
Property Ownership Does Not Pass with Assignment
Assignment does not transfer ownership. If the property is registered in the name of only one of the parents, that parent remains the owner; if it is jointly owned, the shares remain those resulting from the purchase, succession or a subsequent property agreement. The family home order does not replace a sale deed, a division or a waiver of a share.
Instead, assignment grants the right to continue living in the family home. It is a right of enjoyment linked to family crisis and the protection of children, not a new ownership of the property. Article 337-sexies of the civil code establishes that the judge grants the enjoyment of the home by primarily taking into account the best interests of the children and considers any property ownership when regulating the economic relations between the parents. The text of the provision can be consulted in the Civil Code on Normattiva.
The owner retains different powers and limits. They may remain the owner of the asset, but they cannot treat the property as if it were vacant if the assignment order grants its enjoyment to the other parent and the children. Similarly, whoever lives in the home as the assignee cannot sell it, donate it or dispose of it as an owner simply because they live there.
This distinction also has a practical effect on economic relations. Free use of the home can represent an economically significant advantage, and the judge takes it into account along with the other elements of the family situation. However, there is no fixed formula that automatically transforms the value of the dwelling into a sum to be subtracted from or added to maintenance.
When the Home Can Be Assigned
The decisive criterion is the best interests of the children. The family home is the dwelling that constituted the stable center of family life: the place of daily habits, school, relationships and domestic organization. Assignment aims to prevent separation from forcing children to lose this point of reference as well, in addition to changing relationships between parents.
However, the presence of children does not lead to an automatic outcome. The judge must establish with whom the children live predominantly, how visitation schedules are organized, which dwelling truly functions as the family home and whether staying in that place still serves their best interests. Joint custody alone does not assign the home: both parents can participate in important decisions for the children, while the choice regarding the dwelling requires a concrete examination of their daily lives.
When there are neither minor children nor adult children who live together and still need financial protection, assignment does not become a tool to compensate the parent with fewer resources. In that case, ownership, any cohabitation of the property, the lease agreement and any financial contributions remain to be addressed separately. The home is not a prize for the weaker spouse, but a measure functional to the protection of offspring.
Expenses, Condominium and Damages: Separate Levels Must Be Maintained
Expenses do not all follow the same rule. The assignee uses the property, but assignment does not transform them into the owner or a condominium member in place of the titleholder. For this reason, vis-à-vis the condominium, the owner's position remains central: the administrator requests contributions from the condominium member, i.e., the owner or the holder of a real right over the unit.
The Court of Cassation has clarified that the administrator cannot act directly against the spouse or cohabitating assignee solely because they are the assignee of the family home. The reason is that assignment grants a personal right of enjoyment, not a real right over the apartment. The principle results from the review by the Court of Cassation on ordinance no. 16613 of 2022.
In relations between parents, however, it is necessary to read the order or agreement. The parties may have provided for who bears utilities, current expenses, maintenance work or loan installments. If precise rules are missing, it is incorrect to assume that every expense falls entirely on the person living in the home, nor that every cost remains without exception the responsibility of the owner. What matters is the nature of the expense item, the title of ownership and what was established in the separation, divorce or regulation of children.
A distinct issue concerns the change of residence or domicile. In the presence of minor children, Article 337-sexies requires each parent to notify the other of the change within thirty days. Compensation is not automatic: the law links the consequence to the damage actually caused by the difficulty of locating the other parent or the child. This rule is also contained in Article 337-sexies of the Civil Code.
New Partner, Marriage and Abandonment of the Dwelling
A new relationship should not be confused with immediate revocation. Article 337-sexies lists among the circumstances affecting the enjoyment of the home the fact that the assignee permanently leaves the dwelling, establishes a common-law cohabitation or contracts a new marriage. However, these situations must be read in light of the function of the measure: the protection of the children's lives in their family home.
The Constitutional Court, interpreting the previous discipline with corresponding wording, excluded that a new cohabitation or new marriage can be treated as a blind mechanism, without considering the best interests of the children. Judgment no. 308 of 2008 requires that the termination of assignment be linked to an assessment of compliance with such interests. The new fact must be verified in its concrete effect, not merely declared by the other parent. The reference is Constitutional Court judgment no. 308 of 2008.
If the assignee truly moves and the home is no longer the stable place where the children live, an essential prerequisite of enjoyment ceases to exist. A short absence for work, family care or temporary needs does not automatically equate to stable abandonment. Duration, continuity and the actual organization of family life matter, not a single registry change or occasional presence elsewhere.
The request for revocation alone does not produce the eviction from the property. As long as the order remains effective, no one can substitute themselves for the judge by changing locks, interrupting essential services or unilaterally forcing a departure from the home. If the change is significant, it is necessary to request the modification of conditions and explain why the previous arrangement no longer adequately protects the children.
Sale of the Property, Third Parties and Modification of Conditions
Assignment does not absolutely prevent a sale. The owner may have an interest in selling the property or requesting the division of jointly owned property, but they must contend with the right of enjoyment granted to the family. The assignment and revocation orders are transcription-eligible and, upon transcription, can be set up against third parties according to the rules referred to in Article 337-sexies and Article 2643 of the civil code.
In simple words, transcription serves to make the existence of the assignment ascertainable in the real estate registries. Selling does not mean clearing the home: anyone evaluating the purchase must know the legal situation of the property, and the owner cannot present it as available if there is an enforceable order regulating its enjoyment.
If the location of the children, their financial self-sufficiency, the actual use of the home or the financial conditions of the parents change stably, the conditions can be revised. Article 473-bis.29 of the civil procedure code allows for the request at any time to revise orders protecting minors and economic contributions when justified reasons arise; the procedural discipline is referred to in Legislative Decree no. 149 of 2022 on Normattiva.
The revocation of the home does not alone determine a new allowance. The loss of enjoyment can affect economic relations, but it requires a separate assessment of incomes, the needs of the children, the availability of other housing and obligations already established. It is incorrect to assume that every revocation is automatically followed by an increase in maintenance.
What Elements Clarify the Position Regarding the Home
The decisive document is the order or agreement regulating the family. It is necessary to verify whether the property has been assigned, to whom, for what reasons and with what clauses regarding expenses, mortgages, utilities and eviction. Next, the purchase title or lease agreement, the children's cohabitation situation and subsequent facts that may justify a modification are needed. The formal fact of ownership is not enough, just as claiming to live elsewhere without reconstructing where the children's home truly is is not enough.
Frequently Asked Questions
Can I stay in the home if I am not the owner?
Yes, if a valid assignment exists. The order can grant the enjoyment of the home to the parent with whom the children live, even when the property belongs exclusively to the other. However, staying in the home does not make you the owner: you cannot sell it, rent it to third parties or dispose of it beyond the limits deriving from the recognized right of enjoyment.
Is the home automatically assigned to the custodial parent?
No, it is not automatic. The predominant cohabitation of the children with one parent is an important element, but the judge must evaluate whether the property is truly the family home and whether its assignment serves the best interests of the children. Joint custody neither excludes nor alone mandates assignment.
Can the owner sell the assigned home?
The sale may be possible, but it does not cancel the assignment. The owner retains ownership of the asset; however, the assignment order can affect the effective availability of the property and, if transcribed, can be set up against the third-party buyer. Before selling, it is necessary to verify the content and publicity of the order.
Does a new partner cause the immediate loss of the family home?
No, treating it as an automatic fact is not enough. New cohabitation or new marriage are relevant circumstances, but the protection of the children remains the central criterion. Revocation requires ascertaining whether the change truly affects the function of the home as the domestic environment of the offspring.
Can I request the modification of assignment after years?
Yes, if new justified facts have intervened. For example, the stable relocation of the children, the achievement of their financial self-sufficiency, the abandonment of the home or a different housing organization can take on relevance. The request must indicate which concrete change makes the previous order no longer adequate.
Useful References and Conclusion
The rules on the family home require keeping the title of ownership, the best interests of the children and the economic consequences of assignment separate. The right question is not only whose home it is, but what function it has today for the children and what obligations result from the order in force. If you need to understand whether to request an assignment, a revocation or a modification of conditions, you can contact me.