Does the Family Home Always Go to the Mother in a Separation? Understanding the Legal Reality in Italy

In Italy, when a marriage ends—particularly where minor children are involved—one of the most sensitive legal questions concerns the assignment of the family home. Contrary to widespread belief, Italian law does not automatically assign the home to the mother, even if she is the custodial parent. The real guiding principle is always the best interest of the child.

This has implications not only for family law but also for broader issues like inheritance in Italy, Italian succession law, donation in Italy, and even Italian estate planning, especially when the family home is part of an estate subject to probate in Italy or inheritance tax Italy.

How Is the Family Home Assigned After Separation?

The assignment of the home is not compensation for the economically weaker spouse, nor is it a method of dividing property. Its sole purpose is to preserve the child’s emotional stability by maintaining their living environment.

Usually, the court grants the home to the parent living with minor children. Since in most cases that parent is the mother, the assumption arises that the mother always receives the house. However, the Italian inheritance law and recent rulings clarify that this is only a default assumption, not a right.

Ownership of the property—whether it belongs to one spouse or is jointly owned—does not influence the decision. Nor do the economic conditions of either parent. The Italian courts focus solely on what living arrangement supports the child’s well-being.

A Key Case: Supreme Court Ruling No. 14460/2025

In a landmark 2025 case, the Italian Court of Cassation rejected a mother’s request for the assignment of the former marital home, despite her being the custodial parent. Why?

Because the mother and daughter had, for over six years, lived with the maternal grandmother. During that time, the child had developed a stable routine, school life, and deep emotional ties in the grandmother’s home. Returning her to the former family
residence—especially one shared with a conflicted paternal grandmother—would have been traumatic.

This case highlights that the “habitat” the law protects is not necessarily the previous family home, but the child’s current, stable environment.

Does the Length of the Legal Dispute Matter?

No. The court emphasized that decisions about residence must reflect the present-day needs of the child, not the situation when the case was first filed. If the child has established a new, stable environment elsewhere during the lengthy court process, that new habitat takes legal priority.

This is particularly relevant in cases involving inheriting property in Italy, where the location and use of inherited property might shift during legal proceedings. For example, a US citizen inheriting property in Italy may find that selling inherited property in Italy—including a former family home—must consider such family law rulings alongside Italian estate tax or inheritance tax Italy obligations.

Conclusion: The Child’s Interest Comes First

The Court of Cassation’s decision reaffirms that the assignment of the family home in Italy is not automatic. The presumption that the house goes to the parent with the children—usually the mother—can be overturned if it no longer serves the child’s best interest.

This has wider implications for Italian inheritance law and Italian estate planning. If the property involved in a separation is also part of a family inheritance or subject to donation in Italy, its legal status can be impacted by custody decisions and probate in Italy.

For any parent—Italian or foreign, including a US citizen inheriting property in Italy—navigating these intersecting legal areas requires careful attention to the child’s needs, not just ownership or inheritance rights. Courts will always prioritize the stability, security, and emotional well-being of the child, regardless of property claims.

VGS Family Lawyers is a law firm that offers assistance to English-speaking clients with interests in Italy.
In case you need assistance, please write to: info@vgslawyers.com.