What separated parents need to know about usufruct?

Usufruct is the legal right to use another person’s property and receive benefits from it for a specified period, not exceeding the individual’s lifetime.

When spouses decide to divorce, it is essential to ensure the child’s right to housing. If the spouses cannot reach an amicable agreement regarding the consequences of the divorce, the dispute will be resolved in court, where the issue of usufruct may arise.

When can usufruct be established?

• Spouse with Minor Children: If a spouse has minor children, the court may grant them the right to use family property, or a portion of it, through usufruct.

• Property Ownership: If the residence is owned by one spouse, the court can grant usufruct to the other spouse if minor children will reside with them post-divorce.

Usufruct can be requested by the interested party or may be established by the court. The duration of usufruct is typically until the child reaches adulthood or for life if the child is disabled. This right cannot be restricted by mutual agreement between the parents.

Usufruct applies to the whole property or a part of it, based on factors such as the size of the property, the number of children, their ages, and their genders. However, it is rare for usufruct to apply to only part of the property, as doing so could undermine the children’s right to a safe living environment, particularly in conflictual situations.

Example of Usufruct:

• A father owns a house, while the mother has no real estate. In this case, the court may grant the mother the right to live in the father’s house until the child turns 18.

• If both spouses jointly own a home, the court may grant usufruct to the parent with whom the child lives, allowing them to use the other spouse’s share of the property until the child reaches adulthood.

Usufruct may apply in different scenarios, for example, if both parents own property, the parent with whom the child resides may request usufruct on the other spouse’s property, depending on the circumstances, which will be assessed on a case-by-case basis.

Usufruct can also apply to the father’s or mother’s residence when the child is born to unmarried parents.

Unsure if Usufruct Applies to Your Case?

Every case is unique, and it is important to properly assess your rights and options. If you are uncertain whether usufruct applies to your situation, contact us for a detailed evaluation and guidance on how to protect your children’s interests.