Who has the Right to the Property in a Terminated Cohabitation?

And what if children are involved? The general rule in ended cohabitation is that each party take their part. A cohabiting couple does however often own assets together which can not be divided in an ended cohabiting arrangement.

This typically affect the couples’ previously joint property. For such assets the general rule does therefore not solve the question about who has the right to keep the assets.

Had the Right to the Property due to the Son’s Needs

That the care for children can be decisive in a case regarding the right to the property in ended cohabitation, is illustrated in a case recently heard in the Norwegian Court of Appeal (lagmannsretten). A man and a woman had together purchased a property where they owned a half each. A joint mortgage had been made, where the parts were both responsible. The couple did not have children together, but each their child from other relationships. The woman had the daily responsibility for her son, whilst the man had time together with his child. When the couple split the question arose as to who had the right to the property.

The Norwegian Household Community Law (Husstandsfellesskapsloven)

Both referred to the Norwegian Household Community Law § 3 section 1(3). The woman argued that there were ‘strong reasons’ for her having the rights to the property based on the son’s need to continue living on the property. The son had previously been bullied and therefore needed a stable and safe environment. The man also argued that there were ‘strong reasons’ for him having the rights to the property. He had put considerable effort into the property and had invested considerable funds in a sound studio. The Court of Appeal decided that there were strong reasons for the woman to keep the property. It was stated that it was the son that was the decisive factor to keep the property.

The Main Rule is that Neither of the Parties Have the Right to Take Over the Other Party’s Property

The main rule for property where the parties own an ideal part each, is that neither of the parties have the right to take over the other party’s property. When the parties do not agree who should take over the other’s property, the solution is that the joint ownership must be dissolved with sale on the property market. From the main rule there are however made exceptions in the Norwegian Household Community Law § 3 section 1(3).

Exceptions

The Norwegian Household Community Law § 3 section 1(3) states that:

”Dersom husstandsfellesskapet oppløses på annen måte enn ved død, kan en av partene når sterke grunner taler for det, få (…) rett til å overta boligeiendom eller andel av boligeiendom som tilhører en annen av partene og som utelukkende eller hovedsakelig har tjent til felles bolig”.

This means that if the joint ownership is dissolved in any other way than death, one party can have the rights to the property where there are strong reasons for this, even though the other party has put in considerable efforts or funds in the property.

There Must be Strong Reasons

For one of the parties to have the rights to the property there is a requirement of ‘strong reasons’. Of the preparatory work of the decision it emerges that whether ‘strong reasons’ exist must be based on a consideration of the parties’ interests and needs.

In relation to previously joint ownership of a property, the parties will often have equally strong reasons to continue living on the property. In such a situation the court will often be restrained from giving one of the parties the rights to the property.

If one of the parties will have the daily care for the children who have lived on the property, this will often be a strong argument for the rights to the property.

Do you have any questions in relation to who has the rights to the property after ended cohabitation?

Contact Osloadvokatene
by barrister Kristoffer Dalvang
tel 922 65 960 or email dalvang@advokat.no