In the context of a divorce, it is not uncommon for the use of the family home not to be judicially assigned to one of the spouses. In practice, however, one of them ends up living in the house, which is a jointly owned asset.
It is also often the case that the spouse who is not living in the home later seeks compensation for the other’s use or previous use of it.
In such situations, when there is no agreement between the spouses, the courts—including appellate courts—have adopted two opposing positions: either holding that the awarding of compensation is not legally admissible regardless of the specific circumstances claimed, or holding that such compensation must necessarily be granted in order to prevent one spouse from unjustly enriching themselves at the expense of the other.
The Supreme Court of Justice (Supremo Tribunal de Justiça), however, takes the view that the law, by allowing the judge to make a provisional decision regarding the use of the family home during the divorce proceedings, permits a case-by-case assessment of the spouses’ personal and financial circumstances. This allows the court to decide, in the specific case, whether the use is to be granted free of charge or for consideration. That is, the Supreme Court of Justice interprets Article 931(7) of the Code of Civil Procedure as allowing the court to take into account the actual circumstances of each spouse and to decide, in accordance with principles of fairness and justice, whether to award financial compensation.
Therefore, compensation for the exclusive provisional use of the family home will only be due if the judge has explicitly determined such compensation in the decision rendered.
In short, the awarding of a compensatory amount arises from a judicial assessment of the specific situation, which—taking into account the balance of interests involved—concludes that the payment of compensation for the exclusive use of the family home is appropriate. This judicial assessment is what establishes the right to compensation. If such a right is not established in the decision, there is no basis for the spouse who does not use the home to later request compensation.
Similarly, there should be no compensation when, due to inaction by the spouses, no agreement has been reached regarding the use of the family home, and no court decision exists on the matter.
Finally, it should be noted that this issue cannot be viewed solely under the rules of co-ownership, whereby all co-owners have the right to use the property and none can prevent the others from doing so. This is because the matter concerns a jointly owned asset that serves as the family home, and not a case of strict co-ownership.
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