When is the safeguard for extending the grant for up to two years activated?

The family home is the centre of daily life and a refuge of stability for every family. When spouses are separated, the question of who remains in the home often becomes a point of contention that goes beyond issues of ownership.

Article 17(1) of Law 23/1990 gives the Family Court the discretionary power to order the exclusive use of the home, even against the interests of the owning spouse, when this is required by reasons of equity, the particular circumstances of each spouse and the best interests of the children.

However, the lesser known yet crucial safeguard in the same article governs the continuation of protection after the dissolution of the marriage, allowing for the extension of exclusive use of the marital residence for a period not exceeding two years from the date of the divorce.

This issue becomes particularly significant because divorce is often granted while the settlement of property disputes between the spouses is still pending, or where an interim or final order for exclusive use of the matrimonial home has already been issued.

In such instances, the owning spouse may argue or even threaten that the dissolution of the marriage entitles them to re-enter the home.

At the same time, the wife, who is usually the parent with custody and care of the children, faces a practical question. Can the two-year extension be requested in advance, or must the application be filed only after the divorce?

When the safeguard in Article 17(1) is activated

Despite the relative ambiguity in the wording of the safeguard, a careful reading and interpretation, particularly of the language used by the legislator that Family Courts may “extend the grant to one spouse of the exclusive use of the family home even after the dissolution of the marriage”, presupposes the existence of a prior order for exclusive use of the matrimonial home.

The word “extend” means to prolong something that already exists; it does not mean “to issue” a new order from scratch.

The reference to “up to two years after the divorce” does not transform the provision into a new “housing tool” for the post-divorce period. It merely allows, when justified, the continuation of an already existing protection without abrupt interruption.

The exclusive use of the family home is not punitive in nature, nor is it intended to resolve property disputes after the marriage has ended. Its purpose is to prevent an immediate, socially and practically harmful displacement, particularly when children are involved or when one spouse has no realistic means of securing alternative accommodation.

If the provision were interpreted as allowing the issuance of a fresh order after the divorce, its transitional purpose would be lost and it would be transformed into a mechanism for managing housing and ownership disputes.

This would create institutional inconsistency, expand the jurisdiction of the Family Court into areas outside the core purpose of Article 17, and increase the risk of the process being used as a pressure tactic.

Equity as the compass of family justice

The reference to “reasons of equity” is essential. Family justice must focus on the human aspect and the practical consequences of a decision, the children’s safety, continuity in schooling, financial vulnerability and the need for a smooth transition. That is why the legislator allowed for an extension of up to two years as a reasonable bridge after the divorce.

However, equity cannot be used to bypass the meaning of the verb “extend.” Equity serves as a criterion for determining whether existing protection should continue and for how long, not as a basis for initiating protection that was never requested or granted prior to divorce.

Otherwise, the exception would swallow the rule and the measure would be detached from its protective framework.

When there is an “extension” and when there is not

The safeguard in Article 17(1) of Law 23/1990 allowing extension of exclusive use “for up to two years after the divorce, if reasons of equity so require”, does not establish a primary power for issuing a new order after the dissolution of the marriage. It only authorises the extension of an already existing order as a form of transitional protection.

The court examines whether the reasons that justified the initial grant continue to exist after the divorce and, if so, may extend the measure for up to two years. This interpretation protects the spouse in need without opening the door to abuse and without distorting the post-divorce property reality.