If a few months ago we talked about what the justice system in Catalonia thinks about the possibility of living with a new partner in what was the family home of the marriage after the divorce, this time we focus on what the Supreme Court thinks about it: Can I lose the right to use the family home if I live in it with another partner? We do so based on a judgment of the Supreme Court in which this circumstance is specifically discussed.
The criteria, as we will see, are opposite to those we commented for the case of the Catalan justice, but it is necessary to value that, in Family Law, universal formulas do not exist: it exists, therefore, the possibility of obtaining a criterion or another depending on the concrete case and, mainly, of the interest of the minor. Consult us about your case without obligation. The judgment to which we refer was handed down last November 20, 2018 and was issued by the Plenary of the Civil Chamber.
It analyzes an increasingly common case: the home is attributed to one of the spouses after the divorce (the one who has sole custody of the children) and a new partner enters to live in the home. Can this result in the loss of the right to use the dwelling?
Can I lose the right to use the family home if I live with another partner?
As in all these cases, the interest of the minor is what prevails, above any other factor, when making a decision.
And, in this case, the Supreme Court ruled that it is possible to terminate the use of the family home attributed to the custodial spouse and their children when the new partner of the custodial parent also cohabits in the family home. Thus, according to the Court, with the entry of the new partner in the cohabitation, the home ceases to be “family”, as a third person has entered.
This opens the way to extinguish this right, which does not imply that this must occur in any case.
The specific case: modification of measures for the termination of the right of use of the home
In this specific case, it was the father who requested judicially, through a proceeding for modification of measures, the termination of the right of use enjoyed by his ex-spouse together with their two children in the former family home. In addition, the objective was the sale of the house, or its adjudication to either of them, with the one who finally obtained the property paying the amount corresponding to the other spouse.
The first judgment denied the father the termination of the right of use, although it did reduce the amount of alimony for the children (subsidiary request of the plaintiff).
On appeal, a subsequent judgment, handed down by the Provincial Court of Valladolid, partially upheld the appeal, declaring the extinction of the right of use of the marital home attributed to the plaintiff’s ex-wife at the time of the liquidation of the community property.
The alimony, on the other hand, returned to its previous amount.
The Provincial Court argued (following the criteria of previous rulings of the Supreme Court) as follows:
“(…) The entry of a third person in the sentimental sphere of the wife and materially in what was the family home makes the home lose its former nature of family home because it serves in its use to a different and distinct family. For that reason the sentence of the First Chamber of November 19, 2013 only considers family housing that in which the family has coexisted, with a will of permanence so that using this criterion we consider that disappeared that family, well united or disintegrated, the housing also has to lose the consideration of family housing. Because, as the above mentioned sentence points out, a dwelling that does not serve the purposes of the marriage cannot be considered as a family dwelling and we consider that it does not make sense for the children and the custodian to continue to maintain the use of a property that no longer serves its original purposes beyond the time needed to liquidate the community property”.
However, the Court did not rule the immediate sale of the property, but established that first the community property should be liquidated, maintaining the use of the property by the plaintiff’s ex-wife. Hence a new appeal, this time before the Supreme Court and from the hand of the Public Prosecutor’s Office, based on the fact that the best interests of the minor must prevail over the patrimonial interests of the parents. The Supreme Court, in short, maintains intact the sentence issued by the Provincial Court.
And it does so by increasing the following:
“This Chamber has not directly ruled on the matter to be resolved. (…) The Chamber ratifies the arguments and pronouncements of the appealed judgment and dismisses the appeal. The introduction of a third party in the home in a manifestly stable relationship with the parent who benefited from the use of the home because she was assigned custody of the children, an aspect that is being examined, changes the status of the family home. It is not denied that under the protection of the right to personal freedom and the free development of the personality, new relationships can be established with whomever is deemed convenient, what is questioned is that this freedom is used to the detriment of others, in this case the non-custodial parent. A new relationship, after the breakup of the marriage, has an evident influence on the compensatory pension, on the right to remain in the family home and even on the interest of the children, from the moment in which it introduces elements of valuation different from those that were initially taken into account and that, in relation to what is questioned here, should be taken into account, without losing sight of that interest of the children, which is the one that served as title of attribution of the use, under the protection of article 96 of the Civil Code. Once again, the inadequacy of article 96 of the Civil Code to resolve this and other problems associated with the use of the family domicile is noted.”
If you need help with any case related to Family Law, please contact us without obligation: we will be happy to help you.
