离婚纠纷中居住权的裁判设立

Establishment of Adjudication of Right of Abode in Divorce Disputes

摘要: 随着司法实践发展，民法典对居住权设立方式的封闭式列举的局限逐渐显现。尤其在离婚纠纷中，囿于意定设立的局限，一些婚姻关系中弱势群体的居住权益难以得到保障，偏离居住权的立法初衷。通过对离婚纠纷中有关居住权案例的梳理，结合婚姻家事下居住权的伦理性特点，法院可根据民法典物权编通则和婚姻家庭编离婚财产分配制度的相关规定为婚姻弱势方裁判设立居住权。但分配离婚夫妻居住权益时，意定设立仍为一般原则，应将裁判设立居住权视为兜底规则，仅在适用离婚经济帮助制度、为抚养子女的非产权方配偶设立居住权等必要情形下适用。

Abstract: With the development of judicial practice, the limitation of the civil code’s closed enumeration of the way of establishing the right of residence gradually appears. Especially in divorce disputes, due to the limitations of the intended establishment, the residence rights and interests of some vulnerable groups in marriage relationships are difficult to be protected, which deviates from the original intention of the residence right legislation. Through sorting out the cases of residence right in divorce disputes, combined with the ethical characteristics of residence right in marriage and family matters, the court can establish the residence right for the vulnerable party in marriage according to the general rules of real right compilation of Civil Code and the relevant provisions of marriage and family compilation divorce property distribution system. However, when distributing the residence rights of divorced couples, the intention to establish the right of residence is still a general principle, and the decision to establish the right of residence should be regarded as a backstop rule, which is only applicable in necessary cases such as the application of the divorce economic assistance system and the establishment of the right of residence for the non-property owner’s spouse who raises children.