When the family home is jointly owned and cannot be physically divided into two independent living units, the issue is not simply who will continue to live in it. A distinction must be made between the right to live in the home, which may be regulated in the best interest of the children, and the ownership of the property, which instead must be settled between the ex-spouses. The balancing payment comes into play precisely when one party receives a value greater than their share.

I will explain how this distinction works, how the value to be equalized is formed, and why the garage can concretely change the outcome. We will also see what happens if the house has already been assigned as a family residence: that assignment does not automatically coincide with the transfer of ownership, but it can affect the valuation if the asset is attributed to the other co-owner.

Home assignment and ownership: two different issues

The assignment of the family home does not transfer ownership on its own. Article 337-sexies of the Civil Code governs the enjoyment of the family residence and primarily links it to the interest of the children. The court order may therefore allow a parent to continue living in the home with the children, even if the property belongs to the other parent or is jointly owned. The rule concerns the use of the house, not who ultimately owns it.

The text of Article 337-sexies, introduced into the Civil Code by Legislative Decree no. 154 of 2013, also provides that the assignment must be considered in regulating the economic relations between parents and that the measure may be transcribed. You can consult the text of Article 55 of Legislative Decree no. 154 of 2013, which sets forth the provisions of Article 337-sexies.

Division, on the other hand, dissolves the co-ownership. After separation or divorce, the ex-spouses may remain owners of the property in equal or different shares. If they decide to end this co-ownership, they must identify each person's share and attribute assets or money of equivalent value. The assignment of the family home may already exist, but it does not resolve the issue of division by itself.

This distinction avoids a frequent mistake: thinking that the person living in the house has already acquired the other party's share, or that the person who does not live there must always cede it without receiving the value to which they are entitled. The right of enjoyment and the right of ownership can coexist for a period; however, when ownership is concentrated in a single person, it must be determined whether that right of enjoyment remains or is extinguished.

When a house is not comfortably divisible

It is not enough for the house to be physically separable. A property is "not comfortably divisible" when the subdivision does not allow for the creation of truly autonomous portions that can be used without excessive sacrifices. It is therefore not decisive solely whether it is possible to build a wall or open a door: what matters are independent access, utility systems, the ability to freely enjoy each part, necessary easements, the cost of the works, and the loss of value produced by the division.

The Court of Cassation has clarified that difficult divisibility can exist even when the subdivision is materially feasible, if the created parts would not be autonomous or would require complex or expensive works, or again if they would suffer a significant economic depreciation. The criterion is explained in the review by the Court of Cassation concerning ordinance no. 27984 of October 4, 2023.

The presence of a garage can make a different balance possible. If the apartment is not subdivisible, it does not mean that the entire common estate must necessarily follow the same fate. A garage, cellar, or jointly owned parking space can be attributed separately to one of the co-owners, helping to form two portions of value closer to the respective shares. In this case, the balancing payment may decrease, or may not be necessary.

However, the garage must be precisely identified. It can be an autonomous real estate unit, an appurtenance of the house, or an asset with a different ownership from the apartment. It is not enough that it has always been used together with the house: the purchase deed, cadastral data, transcriptions, and the actual ownership share matter. If the garage does not belong to both parties, it does not automatically enter into the calculation of the division between the ex-spouses.

The balancing payment: what it is and how it is calculated

The balancing payment equalizes the value of the shares. It is not a freely chosen price to "buy" the other's half, although in practice it may resemble a share purchase. It serves to compensate the difference between what each co-owner should receive based on their participation and what they actually receive in the division.

A simple example helps understanding. If the apartment and garage are jointly owned at 50%, have a total value of 330,000 euros, and one of them receives both, each is entitled to 165,000 euros. The person who receives the entire complex must therefore recognize a balancing payment of 165,000 euros to the other, unless there are other common assets, common debts, or credit items to consider. If instead one receives the apartment worth 300,000 euros and the other the garage worth 30,000 euros, the former must equalize the difference with 135,000 euros.

The relevant value is that of the asset at the time of the division. For this reason, it is not enough to refer to the price paid years earlier, the cadastral income, or an estimate carried out in a different phase of the separation. The open market value may depend on location, maintenance status, urban planning regularity, consistency, encumbrances, occupation, and characteristics of the garage. A reliable estimate must refer to the asset in its concrete legal and material situation.

Additional elements may also affect the calculation, but they must not be confused with the balancing payment. An existing mortgage, expenses incurred for the common asset, sums owed between the ex-spouses, or credits for works may require separate or integrated settlement in the agreement. The answer changes based on who is obligated to the bank, who made the payments, and the title under which they sustained them. The value of the house is therefore the starting point, not always the sole concluding data.

The home already assigned to the parent cohabiting with the children

The value is not always the same for the person receiving the property. If the ownership of the entire house is attributed to the parent who is already the assignee of the family residence, the personal right of enjoyment merges with full ownership and is extinguished. According to the United Sections of the Court of Cassation, in this situation the house must be valued at its full open market value for the purposes of division and balancing payment.

The principle is important because the permanence of the children in the house does not justify, by itself, a discount on the value owed to the other co-owner when the assignee becomes the exclusive owner. The Court places the economic needs related to children within the regulation of maintenance, not in the automatic reduction of the value of the property assigned to the cohabiting parent. The reference is found in the review by the United Sections on judgment no. 18641 of June 9, 2022.

The outcome changes if the other ex-spouse becomes the exclusive owner. If the house is attributed to the person who is not the assignee and the other party's right of family habitation continues to burden the asset, the received ownership remains limited in its enjoyment. In this hypothesis, the Court of Cassation holds that such an encumbrance must affect the economic valuation. Therefore, one cannot automatically use the same full value criterion provided for the assignee who becomes the sole owner.

This difference shows why it is incorrect to perform the calculation starting solely from the ownership percentage. First, it must be established to whom the property will be attributed and whether the assignment order will remain effective after the division. Only then can a value base consistent with the right that will actually be transferred be identified.

The role of the garage in the division

The garage can be a lever for rebalancing, not an accessory detail. When it has its own real estate consistency and belongs to both, it can be assigned to one of them while the apartment is attributed to the other. This solution can reduce the money necessary to equalize the shares and, in some cases, prevent the balancing payment from becoming too burdensome.

The choice does not depend solely on commercial value. A garage connected to the dwelling by an appurtenant bond can also be relevant for practical utility and for the market appeal of the apartment. Separating it from the house may be possible, but it can also decrease the overall value or create a poorly functional setup. Conversely, an easily accessible and autonomous garage can constitute a portion to be attributed separately without sacrificing the utility of the dwelling.

It must not be presumed that the garage always follows the house. The deed of origin may indicate a unitary purchase or two distinct units; the ownership shares may not coincide; encumbrances, mortgages, or third-party rights may exist. A clear agreement must expressly state whether the garage is transferred with the apartment, attributed to the other ex-spouse, or left in co-ownership. Leaving this point undefined means maintaining a possible source of conflict even after regulating the house.

Agreement, attribution and sale: concrete alternatives

Agreement allows for building a more flexible solution. The ex-spouses can establish who receives the house, whether the garage follows the dwelling or not, what value is attributed to the assets, and how the balancing payment is made. Immediate payment is not the only possibility: the parties can provide for a deferred or installment sum, provided they precisely define the amount, deadlines, guarantees, and consequences of potential non-payment.

When the agreement entails real estate transfers, the form of the deed matters as much as the content. Ownership, shares, cadastral data, garage, any encumbrances, and payment methods must be identified without ambiguity in a deed suitable for real estate advertising. A generic formula regarding the future transfer of the house or garage may fail to settle the transfer and leave doubts precisely concerning the asset to be attributed.

If there is no agreement, sale is a potential consequence, not a mandatory choice from the outset. In judicial division, it is first evaluated whether a divisional solution exists that respects the shares, including through the attribution of the entirety to a co-owner with a balancing payment. If attribution is not practicable or no one can receive the asset under the necessary conditions, the sale of the asset and the distribution of the proceeds can become the concrete alternative.

Before defining a proposal, it is useful to gather the purchase deed, ownership shares, garage documentation, any family home assignment order, the mortgage, and an estimate referring to the current situation into a single framework. The decisive data is the final setup: who will own what, who will be able to use the house, and what sum will truly be needed to make the respective attributions equivalent.

Frequently asked questions

Can I obtain the family home by paying the other ex-spouse?

Yes, if the property is divisible through the attribution of the entirety. When the house is not comfortably subdivisible, attribution to one of the co-owners with a balancing payment is a possible solution. However, it is necessary to define the value of the property, each person's share, any connected common assets, and the fate of the family assignment already ordered.

Is the balancing payment always equal to half the value of the house?

No, it coincides with the difference between the due share and the received assets. With equal shares and no other element to consider, the person who receives the entire house generally pays half the value to the other. The result changes if the shares are different, if there is a common garage, if there are other assets, or if specific economic items must be settled.

Does the house assigned for the children cost less in the division?

It depends on who becomes its exclusive owner. If the property is attributed to the parent who is already the assignee, the United Sections indicate the full open market value. If it is attributed to the other ex-spouse and the assignment continues to burden the asset, the limitation of enjoyment affects the valuation of the transferred property instead.

Must the garage necessarily follow the apartment?

No, but it cannot be separated solely for convenience. It must be verified how it was purchased, to whom it belongs, whether it has its own real estate autonomy, and whether there are constraints connecting it to the house. If it is an autonomous common asset, it can be assigned to one of them to reduce or compensate the balancing payment.

If we do not find an agreement, is the house sold immediately?

The sale is not automatic. First, the attribution of the property to one of the co-owners with the payment of the balancing payment can be evaluated. The sale and division of the proceeds become a possible solution if attribution is not practicable or does not allow achieving a balanced setup between the shares.

Institutional references

For the criterion of difficult divisibility and the characteristics making a material subdivision inadequate, the reference used is the review by the Court of Cassation on ordinance no. 27984 of 2023.

For the effects of the family home assignment on the value of the property and on the balancing payment, the reference is the review by the Court of Cassation on the United Sections judgment no. 18641 of 2022.