Facts
The parties, [B.] and [K.] , married in 1989 and are parents of four children. Before their marriage, they had acquired a 4½-room apartment in Rickenbach as simple partners. After the divorce, the defendant ([B.] ) applied for the undivided allocation of the property, while the plaintiff ([K.] ) demanded its sale by public auction. The District Court of Sursee and the High Court of the Canton of Lucerne dismissed the defendant's application.
The defendant applied to the Federal Court for the annulment of the high court's judgment and renewed her request to transfer the property into her sole ownership. She requested free legal aid.
Considerations
The Federal Court examined whether the conditions for an undivided allocation under Art. 205 para. 2 CC are met. It found that the undivided allocation requires not only a predominant interest in the asset, but also compensation for the other spouse.
The court found that the defendant has a significant interest in taking over the property, as she uses it as a family home with the children entrusted to her. However, the interest of the plaintiff, who demands the sale by public auction to avoid his solidary liability for the mortgage debts encumbering the property, must also be taken into account.
The Federal…