Today we dedicate our post to a recent judgment issued by the Supreme Court in relation to divorce and family housing.
It clarifies a key point: Is it possible to assign one of the couple’s homes as “family home” in favor of one of them when that home did not really fulfill this function during the marriage? This is a ruling that can be very useful for thousands of families and a factor to be taken into account when deciding where to live during the marriage, since decisions on custody and residence (with its economic consequences) may depend on it in case of divorce or separation. Remember that you can ask us any questions about Family Law without obligation: we will be happy to help you.
You may be interested in: Can I lose the right of use of the family home if I live with another partner?
Divorce and family housing: when the dwelling assigned by the judge is not really the “family dwelling”.
The judgment we are analyzing, dated December 11, 2019, and for which Judge Arroyo Fiestas is rapporteur, studies a case in which a woman filed for divorce against her husband, requesting joint custody of their two minor daughters, with an alimony of 400 euros to be paid by her partner.
In the first instance, the claim was partially upheld, the joint custody was maintained and it was agreed that the mother would continue to use the family home, owned by her parents, it being understood that “the most logical thing was that the husband would continue to use the home owned by both” (which did not correspond to the home in which the family lived).
In addition, a maintenance allowance of 300 euros was set.
The father appealed, requesting a reduction in the amount of alimony. The woman, for her part, also appealed, requesting the denial of the attribution to her ex-partner of the use of the house owned by both of them, as well as the extinction of the condominium (co-ownership) and the sale of the property. In response, the Provincial Court maintained the same criteria as the Court, evaluating, among other things, the proximity between the two dwellings (the wife’s residence, the former family home, and the one owned by both parties and the husband’s current residence).
In view of this, both parties appealed, and the case reached the Supreme Court, which ruled, among other things, on the use of the common dwelling by the husband, taking into account that it was not really the family residence during the marriage. Specifically, the defense of the woman claimed in her appeal that the family home “cannot remain for one of them exclusively and without any time limitation”, according to the doctrine of the Supreme Court.
In addition, the doctrine of the Supreme Court would be against, in cases of shared custody, depriving the other parent of the use of the home sine die (without a specific term or date).
The Supreme Court’s response
The Supreme Court, in response, upholds the appeal filed by the woman in both cases, stating that “the appeal is based on the fact that the appealed judgment assigns to the parent the indefinite use of a common dwelling which is not a family dwelling, since the family dwelling has been a dwelling or property of the parents of the parent and appellant”. Thus, the Court continues, “in the appealed judgment it is assumed that the home that has been assigned to the parent was not the family home, but that, in the interest of the children and in application of article 96 of the Civil Code, the use of the same should be maintained to the parent and his daughters, in the periods that correspond to them”.
The Supreme Court comments that both spouses agree that the system of custody is the shared one, on which they do not appeal, stating that the regime of separation of property was agreed at the beginning of the marriage.
The family domicile is in Palencia and the progenitor works 4 hours a day in Valladolid, while the progenitor has been on medical leave for some time and is responsible for the care of the younger daughter (4 years old), who suffers from epilepsy, and the older daughter (11 years old), from the time she leaves school until 6 pm.
“Given the difference in salary of both parents (900/1900 euros) it was held by the Provincial Court that the father would pay 300 euros in maintenance, despite the shared custody system, given that neither of them paid rent or mortgage payments for the home they occupied.” However, the Supreme Court recalls that “this Chamber (…) has stated that in matrimonial proceedings, dwellings or premises other than the one that constitutes the family home cannot be attributed”.
In this specific case, “it is a proven fact that the dwelling awarded in use to the parent was not the family dwelling, so its attribution is an excess legally proscribed in article 96 of the Civil Code”. Therefore, the house in Palencia (awarded to the father as a family home) “will be subject to the process of extinction of the community property. However, the Court takes into account the “difficult situation in which the father will be left for the provision of alimony to his minor daughters”, since, while the mother enjoys housing without payable canon, he “will have to face the hiring of a new home, an inequality that is not fully compensated by the difference in salary”. Therefore, the Court reduced the maintenance allowance from 30 euros to 150 euros, “in application of the powers granted to it by the precept in the interest of the children, otherwise they could not be cared for by their father”. Finally, in order to facilitate an orderly and balanced change of residence, the Court fixed, in the interest of the children, a period of one year from the date of the judgment for the parent to leave the home he/she currently occupies, so that, during this period, he/she must continue to pay the alimony of 300 euros.
After the eviction, this amount will be reduced to the 150 euros fixed by the Supreme Court. If you need help from a family lawyer, contact us.
