Rights of a Spouse After Separation and After the Divorce
In the following article we analyse some of the rights of the spouse in case of separation and in case of a divorce.
1. Financial Support of the Spouse (Alimony)
In case the couple separates, the Court may, at the request of the spouse, order the other spouse to financially support (“Alimony”) the applicant. Termination of cohabitation can also occur even where the spouses live together under the same roof.
Alimony is personal and non-transferable. A necessary condition is the existence of marriage.
The obligation to pay alimony ceases with the dissolution of the marriage. For example, the death of a spouse, which brings the dissolution of the marriage, leads to the termination of the obligation to pay alimony.
In cases where the applicant seeks financial support from the other spouse after the dissolution of the marriage, this is called “Post-divorce support”
Post-divorce support is at the discretion of the Court, has a moral character and is intended to assist a poor ex-spouse. It is given for reasons of fairness.
Such support may be excluded or restricted if this is justified for important reasons, especially if the marriage was short-lived or if the beneficiary is heavily responsible for the dissolution of the marriage or the termination of the cohabitation or if being poor is voluntary.
Post-divorce support ceases if the spouse has remarried or is permanently cohabiting with another person.
2. Right of Exclusive Use of the Family Home
In case of termination of the Cohabitation or in case a notification is given to the bishop or in case a divorce petition has been filed, the Family Court may, at the request of one of the spouses, and for reasons of fairness and the interests of the children, grant to one of the spouses the exclusive use of all or part of the family home, regardless of who is the owner or has the right to use it.
The conditions are not cumulative.
Exclusive use of the family home can only be achieved during the marriage. With the dissolution of the marriage, the Decree of exclusive use expires.
3. Use of Movables
Each of the spouses is entitled to receive the movables belonging to him/her even if both spouses were using them. However, the spouse is obliged to allow the other spouse the use of household items which are absolutely necessary for moving elsewhere, if this is required for reasons of fairness.
4. Separation of the Property
In case the marriage is dissolved or in case of separation of the spouses where the property of one spouse has increased, the other spouse, as long as s/he has contributed in any way to this increase, has the right to demand the return of the part of the increase that comes from his/her own contribution.
The contribution of one spouse to the increase of the property of the other, is presumed to be one third, unless a greater or lesser contribution is proved. Therefore, if neither a larger nor a smaller nor a nil contribution has been proven to the increase of property, the contribution of the spouse will be calculated to one third.
In relation to the increase of the property of the spouses, property which has been acquired through the following means is not taken into account:
(a) Property acquired through a gift or inheritance.
(b) Property which has been acquired through the disposal of property acquired through a gift or inheritance.
Statute of limitations
The claim for participation in the increase in property is barred if it is claimed three years after the dissolution or annulment of the marriage.
Note however that the following reservation exists:
For the purposes of this Law, any claim in the form of a counterclaim, for the purpose of determining the limitation period, will be considered as a separate lawsuit, filed on the same date as the lawsuit in which the counterclaim is filed.
Loss of the right to file a lawsuit and reduction of the amount of the claim.
The Court may decide not to award an amount to the applicant spouse or it may decide to reduce the amount to which he or she is entitled if he or she has left the spouse without reasonable cause or has failed to provide support to him or her.
This provision was never applied in practice and the extent of this was never decided by the Second Instance Court. Neither was its constitutionality judged by the Supreme Court. However, in a first-instance decision concerning the an extramarital affair, it was stated that:
For the purposes of this article, the Courts consider the conduct of the other spouse towards the plaintiff spouse. In this case, the mutual suspicion, as I have mentioned before, had systematically shaken the marital relationship of the parties. It does not matter whether or not the beneficiary spouse is at fault in the divorce.
This Article does not constitute legal advice.