A topic of great interest and relevance, in Italy, especially in light of the reflections on the contents of the bill on shared custody, is the attribution of the right to remain in the marital home, given the strong economic value associated with the purchase of the same and the consequences on the organization of life of cohabiting children.

Precisely the primary interest of the children turns out to be the linchpin on which revolves the entire ratio of the institute, while the moral and material interest of the spouses remains in the background.

In fact, we read in the art. 337 sexies c.c., which must be “prioritized in the interest of the children”.

First of all, it is appropriate to clarify the nature of the right that the provision of assignment of the marital home gives rise to the parent in charge. This is configured as a personal right of enjoyment (and not real), in light of recent judgments (Court of Civil Cassation, judgment of September 19, 2005, No. 18476).

Furthermore, the codicistic notion of “conjugal house” has been interpreted in a highly reductive way by the jurisprudence. Only the one in which the life of the family took place when it was united was defined as a marital home (Cassation, judgment of 20 January 2006, No. 1198) and in which it continues to live at the time of separation (Cass. civ., sentence of September 9, 2002, n.13065).

From this the consequence that they remain excluded is the possible property (perhaps already purchased) in which the spouses had planned to move, both what the spouses had decided to leave shortly before the separation, and that in which the family spent the holidays.

Moreover, as the wording of the art. 337 sexies cc, speaks, generically, of children, can proceed to the assignment of the family home also in favor of the spouse with whom the adult offspring cohabits, which proves deprived, without his fault, of his own income, if there are any need for protection of the home environment and the core of affections (see Civil Cassation No. 7770, August 20, 1997 and No. 247, December 14, 2007).

It is specified, in this regard, that it is not sufficient, for example, that the adult child returns occasionally home for the weekend, thus coming to configure a mere relationship of hospitality, since it is necessary that there is the permanent residence of the child at the ‘home of one of the spouses with occasional expulsions for short periods (see the Court of Cassation, ruling of 22 April 2002, No. 5857).

In the absence of children, or when they are adults and self-sufficient, it is precluded the power, to judge, to assign the house in favor of the weaker spouse, lacking the prerequisite provided by law and being entitled to the owner of ‘ property to be limited, exclusively, for the pursuit of a higher interest, such as that of children. (Court of Cassation, Section One, judgment of October 28, 1995, No. 11297, Court of Cassation, Section I, sentence of March 14, 2014, No. 6020).

It is emphasized that the protection of the assignment of the family home also applies in favor of offspring born out of wedlock.

It should be noted that the family house is also intended to include all the furnishings inside the house, as it has long been underlined in the case law, and also in an obiter of the Constitutional Court (judgment of 27 July 1989, n. 454), according to which the term “habitation” referred to in the codification is assumed “as the substantive voice of the verbal transitive” inhabiting “the family home, that is to say that complex of goods functionally equipped to ensure the domestic existence of the family.

As a family house, therefore, it is not possible to exhaustion in the building, stripped of the normal endowment of furniture and furnishings for the daily use of the family, so the ‘dwelling’ is not identified by the legislator in a formal juridical figure, which could be a real or personal right of enjoyment, but in the concrete situation that regardless of any legal title on the property, of their own of communion, of letting the judge of separation, assigning the dwelling in the family home entrusted with the offspring, according to the ratio legis, does not create a legitimacy to live for one of the spouses as it preserves the destination of the property with his furniture as a family residence “.

And again, we read in the codicistic decree, that “The right to enjoyment of the family home is lost in case the assignee does not live or ceases to live permanently in the family home or cohabiting more uxorio or contracting new marriage.”

This content has been the subject of numerous criticisms, precisely because, being the provision of assignment of a family home aimed exclusively at the priority interest of the offspring, it is quite debatable the choice, dating back, of the legislator to stop this fundamental, fundamental right, due to choices linked to the parental will, only suffered by the children.