The sentence we are discussing in this post has become the focus of debate for attributing, in a divorce case, the use of the family home to the mother until the children of the couple are emancipated, and this despite the fact that it is a private home of the father, i.e., of his exclusive property.
This is a ruling issued by the Supreme Court, which has been echoed, due to its importance, by the General Council of Spanish Lawyers (CGAE).
We comment on its content and take this opportunity to remind you of the criteria that judges usually follow in these cases. If you need legal help in any matter related to your divorce, consult our team of family lawyers in Barcelona.
Divorce and attribution of the family home to the mother in spite of being the father’s private property
The judgment of the Supreme Court assures that, in case of divorce, if the mother has custody of the children, the home is attributed to her until the children are emancipated, even if it is a property owned by the father.
In addition, the High Court assures that the attribution of the use of the family home cannot be limited in time.
As the mother’s defense lawyer comments, the novelty of the sentence is that the house is a private property of the husband, and it is given the circumstance that in this case the wife does not have a job or assets. In this sense, the Court of First Instance had already ruled in favor of the mother, protecting the interests of the children over those of the husband.
Now, the Supreme Court confirms this criterion.
The Supreme Court’s ruling thus confirms the decision to dissolve the marital relationship and, in addition, goes beyond the criterion of the judge of first instance.
If the first attributed the use of the family home to the mother and the common children for two years, the Supreme Court recognizes the mother’s claim not to limit temporarily the right of use of the home, extending it until the children become emancipated. However, the mother must assume the payment of the ordinary supplies and community expenses of a property that is encumbered by a mortgage loan for which the father pays a monthly amount of 827.92 euros.
Temporary limit to the attribution of the use of the family dwelling
The first instance sentence limited the use of the house to two years, on the understanding that this was time to liquidate the community property and for the wife to rebuild her economic situation.
However, both the mother and the father appealed this decision. On the one hand, the father requested that the right of use of the house be limited to 6 months and, on the other hand, the mother claimed to extend it until the emancipation of the children.
The Court upheld the decision to grant the mother and the children the use of the family home and increased the term to two years, but not until the emancipation of the children.
Now, after a new appeal by the mother, the Supreme Court recognizes that the appealed sentence violated the jurisprudential doctrine of the Court regarding the fact that the attribution of the use of the family home to the minor children cannot be limited by the judge.
We take advantage of this post to comment on some key criteria on the attribution of the use of the family home in case of divorce.
Article 96 of the Civil Code states the following:
1. In the absence of agreement of the spouses approved by the judicial authority, the use of the family dwelling and of the objects of ordinary use of it will correspond to the common minor children and to the spouse in whose company they remain, until all those reach the age of majority.
If among the minor children there were some in a situation of disability that made convenient the continuation in the use of the family housing after its majority, the judicial authority will determine the term of duration of that right, according to the concurrent circumstances.
To the effects of the previous paragraph, the common children of legal age that at the time of the nullity, separation or divorce were in a situation of disability that made convenient the continuation in the use of the family housing, they are equated to the minor children that are in similar situation.
Extinguished the use foreseen in the first paragraph, the necessities of housing of those that lack economic independence will be taken care of according to the foreseen in the Title VI of this Book, relative to the alimony between relatives.
When some of the children remain in the company of one of the spouses and the remaining ones in that of the other, the judicial authority will decide the appropriate thing.
2. There being no children, it can be agreed that the use of such goods corresponds to the spouse not entitled for the time that prudentially is fixed whenever, in view of the circumstances, they made it advisable and their interest was the most in need of protection.
3. In order to dispose of all or part of the dwelling and property indicated whose use has been attributed in accordance with the preceding paragraphs, the consent of both spouses shall be required or, failing that, judicial authorization.
This restriction in the dispositive power on the family dwelling will be recorded in the Property Registry.
The erroneous or false manifestation of the disposer on the use of the dwelling will not prejudice the purchaser in good faith. Article 96 of the Civil Code
Based on this article, the custody will be configured as the central element when determining the use of the family home.
This is so because of the special protection enjoyed by the minor, going beyond the limits set by the property law itself, establishing as a priority the awarding of the right of use of the family home to the person who will live with the minor children, that is to say, to the person who has the custody of the minor.
And, according to the literal wording of the article itself: “In the absence of an agreement of the spouses approved by the judicial authority, the use of the family home and of the objects of ordinary use of the same shall correspond to the common minor children and to the spouse in whose company they remain (…)”. Therefore, in those cases in which the custody of the minors is granted with exclusive character -that is to say, to only one spouse-, the application of this precept will be literal, awarding the right of use of the family home to this one.
Meanwhile, in those cases in which the custody is shared -or when there is a division of custody of the minors-, the second criterion will have to be observed, with the judge assessing the “interest most in need of protection”. Thus, in the case of shared custody, the Supreme Court understands that, logically, both parents are custodians, and both would have the same right, so that it is only authorized to be attributed to the non-owner spouse if he/she has a greater need for protection, and for a maximum period of two years.
On the other hand, when the children come of age, the jurisprudential doctrine tells us that, in case the house belongs to one of the parents and the interest of the non-owner spouse does not come into play, the special protection of this property will yield in favor of the right of the owner, and the possession of the house must be given to him/her. Consult us about your case: we will be happy to help you.
