What  to do after divorce? – Right to Residence (habitatio)

In the era of hyperproduction and rapid changes, the speed of life is, also, reflected in the frequency of divorces. Unfortunately, our clients often face questions in such situations – what next? Where can my child and I live now?

In this situation, the well-known legal institute of the right to residence, called “habitatio,” should be invoked, as prescribed by Article 194 of the Family Law (“Official Gazette RS,” No. 18/2005, 72/2011 – dr. law, and 6/2015). It states that “A child and a parent exercising parental rights have the right to reside in the apartment owned by the other parent of the child, if the child and the parent who exercise parental rights do not have ownership over a habitable apartment.”

This specific legal measure aims to provide the child with living conditions necessary for their development, guaranteed by Article 27 of the Convention on the Rights of the Child. These conditions include a standard of living suitable for the physical, mental, spiritual, moral, and social development of the child. The Convention, ratified by our country over three decades ago in 1990, establishes the primary responsibility of parents to ensure, within their abilities and financial means, the living conditions necessary for the development of their child. These conditions, in addition to food and clothing, also involve the issue of housing.

Therefore, habitatio is established primarily to protect the right to housing for a minor child (and the parent exercising parental rights). As this right is essentially a servitude and personal in nature, it is constituted in favor of a specific individual and cannot be transferred to another person.

The Law limits this right in terms of time, which can last until the child reaches the age of majority. Additionally, its establishment must not represent an obvious injustice to the property owner or the other parent. All of this is aimed at preventing the abuse of the law and the legislator’s intention, like in other family law matters, is to act in the best interests of the child.

It is not uncommon that one parent is not the sole owner of the property where the right to residence is sought but is a co-owner. What to do in such a situation?

The law does not provide an explicit answer to this question, but based on the experience of our expert team in family law matters and the opinions of the Supreme Court of Cassation, we conclude that this right does not actually interfere with the property owner’s right of ownership, but only restricts their right of use this property. This implies that it is possible and allowed to establish the habitatio servitude even when the other parent is a co-owner of the property.

Furthermore, the Family Law does not exclude the possibility of establishing the right to residence for a minor child in an apartment owned by both parents.

Although, habitatio is, by its legal nature, a real right, it shall be obtained in a quick, confidential, and efficient manner, with an active role of the court and, if necessary, with the obtained expert opinion of the authorities dealing with social care and child protection.

If there exist a threat that the owner might dispose of the property, along with the lawsuit, it is necessary to submit a proposal for the determination of a temporary measure. This would allow the competent court to issue a decision prohibiting the alienation and encumbrance of the property until the legal conclusion of the litigation, with the annotation in the relevant Cadastre.

In conclusion, the child’s right to a home must not be subordinated to the rights and interests of the parents. The right to residence in favor of minor children does not deprive the defendant of their right to co-ownership of the respective apartment; it only temporally restricts their right to use until the child reaches the age of majority.

It is important to note that whether the children are born within or outside of marriage is irrelevant; they are in an equal legal position. As mentioned at the beginning, the precondition for exercising this right is that the child and the parent exercising parental rights do not have ownership rights to the habitable apartment, and the establishment of the right to residence does not constitute an obvious injustice to the other parent.

Although the legislator clearly states that habitatio can last until the child reaches the age of majority, this does not mean that it cannot cease before the age of 18, either by natural means (the death of the child) or ex lege, when the legal conditions that led to the establishment of this right change (e.g., if the child or parent acquires ownership rights to the habitable apartment or if circumstances arise that would make any further duration of this right an obvious injustice to the other parent).

Also, a change in the court’s decision regarding the custody of the child to the parent who is the owner of the apartment also leads to the termination of this right.