What happens when a married couple in Catalonia decides to divorce and the family home is owned 50/50 by both parties?
If both parties show interest in keeping it (paying the other party the corresponding amount so that the property becomes in their name only), the balance can be tipped in favor of whoever has a greater ‘interest’ in it, as stated in the Catalan regulations.
But, what does this ‘interest’ consist of and how is it defined in the Civil Code of Catalonia? What circumstances may cause you to have a better chance of keeping your family home in Catalonia?
Today we analyze the adjudication of the family home in Catalonia, through a recent ruling handed down by the Provincial Court of Barcelona.
Adjudication of the family home in Catalonia: the importance of the ‘interest’ of the litigants.
In the sentence we are analyzing, it is discussed which of the two parties of the couple will be awarded the adjudication of the former family home, owned in proindivision to 50 percent of the litigants, whose extinction was agreed by the court.
Both members of the couple showed interest in being awarded the property and, in this sense, the decision of the Court of First Instance was to award the property to the woman . The reason for this ruling lies in the Court’s interpretation of the term ‘interest’ in the Catalan regulations.
Specifically, article 552-11 of the Catalan Civil Code (CCCat) reads as follows:
“The object of the community, if it is indivisible, or if it notably detracts when divided, or if it is a collection that integrates the artistic, bibliographic or documentary patrimony, it is awarded to the co-owner or co-owner who has an interest in it. If there is more than one, to the one who has the greater participation.
In case of equal interest and participation, the lot is decided by lot.
The successful bidder must pay to the others the appraised value of his or her participation, which in no case has the consideration of price or excess of award.
If no co-owner has an interest, it is sold and the price is divided”.
In this case, the Court noted that both parties expressed their desire to be awarded the property and that both parties had an equal interest, so that The factors such as the attribution of the use of the family dwelling were evaluated. Thus, in this case, With the divorce, the use of the family home was attributed to the wife and the daughters born of the marriage. In addition, the house has been the family home of the now litigants and their daughters, and it is located near the school of the children, etc., so that “the award of the property to the appellant would mean the relocation not only of the wife, but also of the children”.
According to the Provincial Court, this “cannot be considered as a subjective circumstance of the party that also requests the adjudication of the common property in identical conditions to those of the other litigant”.
To this are added other circumstances detailed in the appealed judgment, such as the fact that the woman has her job in a travel agency a few meters from the house, in the same street, which “favors the conciliation of family and work, without in any way can be equated with a similar interest” on the part of the appellant, who lives in the company of his mother in her house.
In this sense, the Court assures that, although it is true that the appellant “is right in his desire to have a home in which to establish his private residence, it is true that this does not have to be precisely at the expense of his daughters being forced to change their place of residence, which may affect the school that might be appropriate, etc.” In short, the Chamber clarifies and establishes the criteria for deciding to whom the home will be awarded in the event that both co-owners have expressed their desire to acquire it.
The lottery, which is the option claimed by the husband, would only come into play if there were no differences in the interests of one or the other party, which would not be the case in this instance. Thus, the term ‘interest’ has another extension of a personal and family nature.
These are the facts that favor that interest on the part of one of the two, and that cannot be considered as a mere subjective circumstance:
- A place where families can spend time together
- To serve as a family domicile
- That the relocation affects the proximity of study centers.
- That the relocation affects work and family reconciliation
- That the relocation affects the environment of the cohabitating children
