AKMV The Right of a Wife to Use Property Owned by Her Husband
QUESTION
Hello, I would like to consult with you regarding a family issue. My older brother is getting divorced; he moved in with his new girlfriend in another city and left his still-wife living with their two children in our family house, where they used to live together, and where the wife is registered for permanent residence along with the children. The house belongs to me, my younger brother, and my older brother. Neither I nor my younger brother gave consent for the registration of permanent residence. The problem is that the still-wife does not want to move out. I would like to ask what options I have, or what actions I can take to make her move out. I understand that after divorce, the spouses must agree on where the wife will live with the children, but I do not know how this divorce affects me and my younger brother, or whether we can refuse to allow my older brother’s former wife to live in our family house. I would like to gift my share of the house to my younger brother, and according to a verbal agreement with my older brother, he will also gift his share to the younger brother. I am unsure if this is the “right time” from a legal point of view to gift the shares of the house to my younger brother. From my email, it may be clear that our relationships are very complicated…
ANSWER:
If a house is co-owned by multiple co-owners, each co-owner has the right to use the house in proportion to the size of their ownership share. The co-owners may agree on how the shared property—the house—will be used, for example, which rooms each co-owner will use, and so forth. If one co-owner uses the shared property beyond the extent of their ownership share, the other co-owners have a claim for compensation for this overuse.
If your older brother has a co-ownership share in the house, his wife also has the right to use the house, but only within the scope of your brother’s ownership share. The wife’s right to use the house owned (in this case, co-owned) by the husband is derived from the legal obligation of spouses to live together, as established in Act No. 36/2005 Coll. on the Family.
The right of a spouse to use the other spouse’s property is also confirmed by court rulings. For example, in the Supreme Court of the Czech Republic ruling dated June 7, 2006, file no. Cdo 1544/2005, it states:
“A spouse who, during the marriage, uses an apartment in a house owned by the other spouse derives their right to live in this apartment from the existing family law relationship …, because the content of this relationship includes, among other things, the obligation of spouses to live together … and the mutual maintenance obligation of spouses. On this basis, the non-owner spouse has the right to live with their spouse in the apartment located in the house owned by the other spouse, and the owner spouse is obliged to allow this living (use of the apartment). Upon divorce, this legal reason for living terminates, and the owner spouse may demand eviction of the apartment according to § 126(1) of the Civil Code. The entitlement to housing compensation for the divorced spouse, whose legal reason for use of the apartment in the property of the other spouse ceased due to divorce and who is therefore obliged to vacate the apartment, is not expressly regulated in the Civil Code, but this does not mean that the divorced spouse is not entitled to housing compensation. Their legal status when their legal reason for living ceases must be assessed analogously (§ 853 Civil Code) according to the provision of the Civil Code which most closely regulates the legal relations by its content and purpose. This provision is § 713(1) Civil Code, which regulates the claim for housing compensation of the divorced spouse whose legal reason for using the apartment was, as in the case of the spouse using the apartment in the property of the other spouse, derived from the existence of the marriage and which ceased upon divorce.”
If the divorce becomes final while your brother still holds a co-ownership share in the house, his wife would be obliged to move out of the house only based on a court decision, and the court would also need to consider any claim for housing compensation.
If the sole owner of the house becomes your younger brother (for example, based on gift agreements concluded with you and your brother), then your sister-in-law would not have the right to continue living in the house (assuming no easement or rental agreement has been established in her favor), regardless of whether the divorce has been finalized or not. If she refuses to move out voluntarily, the owner could file a lawsuit for eviction.
The wife’s use of the house or any divorce proceedings do not legally affect the possibility of gifting a co-ownership share.
We assume the co-ownership share is the exclusive property of your brother and therefore is not part of the joint property of spouses (BSM). In such a case, the wife’s consent to the transfer of the co-ownership share would not be required.
Regarding permanent residence registration in the house, this only serves an administrative function and does not grant the right to live in or otherwise use the house.
JUDr. Veronika Michalíková, MBA QUESTION
Hello, I would like to ask if I can cancel my husband’s permanent residence registration when he does not have ownership rights. We have been married for one year, and I acquired the property 10 years before the marriage.
ANSWER:
Hello,
You cannot formally cancel your husband’s permanent residence registration in the property that you solely own.
The cancellation of permanent residence is formally reported to the local registration office in the relevant municipality or city district (if the place of permanent residence is Bratislava or Košice) according to § 2 para. 1 of Act No. 253/1998 Coll. on the Registration of Residence of Citizens of the Slovak Republic and the Register of Residents (hereinafter the “Act No. 253/1998”). Please note that reporting the end of residence is only for record-keeping purposes and does not establish (nor cancel) any rights of the citizen to the building that is their registered residence or to its owner (§ 3 para. 3 of Act No. 253/1998).
§ 7 para. 1 of Act No. 253/1998 lists the circumstances under which the registration office cancels the permanent residence record. According to letter (f) of this provision, permanent residence may be cancelled “at the request of the owner or all co-owners of the building or its part for a citizen who has no usage right to the building or its part; a request may not be submitted against the owner or co-owner of the building or its part, the spouse, or dependent child of the owner or co-owner of the building or its part.”
Therefore, the registration office would most likely reject any request to cancel your husband’s permanent residence without requiring further proof.
Moreover, according to case law, “A spouse who, during the marriage, uses an apartment in a house owned by the other spouse, derives their right to live in this apartment from the existing family-law relationship, which includes the spouses’ obligation to live together and mutual maintenance duties. On this basis, the spouse who is not the owner has the right to live with their spouse in the apartment located in the house owned by the other spouse, and the other spouse (owner) is obliged to allow this use (Supreme Court of the Czech Republic decision, file no. 26 Cdo 1544/2005).”
This derived legal reason to reside ends with the divorce. Only then can a request to cancel the (former) husband’s permanent residence be considered. Such a request must be accompanied by a legally valid divorce decree and an agreement or court decision on the settlement of joint marital property (§ 7 para. 2 letters a) and b) of Act No. 253/1998).
JUDr. Veronika Michalíková, MBA