Today we comment on a recent judgment of great importance, in which the appeal filed by a father requesting a time limit on the use of the family home by his ex-wife was upheld.
In the case under discussion, the couple jointly paid the mortgage of the house at 50 percent, the use of the house being attributed to the wife with the divorce decree, and there was a shared custody regime of their two children.
However, the judge did not establish a time limit for this attribution, an issue that is now corrected by the Supreme Court, and which was not corrected by the Provincial Court. The conclusion is, therefore, that this type of measure should not be approved indefinitely when there is sufficient economic capacity on the part of the person who enjoys the right of use, but should be created as a transitional framework.
In this case, the woman was earning some 3,300 euros net per month, an amount even greater than that received by her ex-partner, who paid 280 euros per month to the father as child support.
Temporary limit to the use of the family dwelling: the Supreme Court rules
The judgment, dated October 26, 220, and for which Judge Salas Carceller is the rapporteur, analyzes a case in which, in the first instance, the mother was assigned the use of the family home, arguing that, in this way, it was preserved a consolidated state of affairs of their joint occupancy and enjoyment by mother and childrenThe fact that, even though the property cannot be considered as a proprietary of the plaintiff -since the payment of the installments of the mortgage loan to finance its acquisition was paid by both parties to the marriage-, the fact is that “it seems that the wife has a better right to the house”, according to the Supreme Court. “The expenses of supplies of the same were attributed to the mother who occupies it, while those related to the payment of the IBI, the outstanding loan installments as well as the amount of the community expenses in half”.
Finally, as child support for the children, and on the basis that each parent would assume the direct satisfaction of the expenses during the periods of custody, the mother was to pay the additional monthly amount of 140 euros for each of them (280 euros in total), as she had a higher income than the father.
Upon appeal of the first sentence, the Provincial Court considered the assignment of the family home to the woman to be correct , essentially agreeing with the arguments of the Court.
In its ruling, the Court stated that it did not deny “the possibility and even the advantage that, from a general point of view, the limitation of use can offer”, but it did not consider that the circumstances for doing so existed.
The father appealed the sentence again until he reached the Supreme Court.
In this case, the Public Prosecutor’s Office considered that, in order to comply with Article 96 of the Civil Code and the case law interpreting it, a time limit should have been established on the use of the family home in order to recognize the rights of the father, who would not be able to enjoy this property and who was forced to access another property to meet the living needs of both himself and his children during periods of custody.
In addition, he recalled that he was still obliged to continue to pay half of the mortgage loan installments. For all these reasons, the Public Prosecutor’s Office decided to join the appeal filed by the father, considering that it would be appropriate to set a time limit of September 26, 2023, which is when the minor daughter would reach the age of majority. In response, the Supreme Court aligned itself with the criterion of the Public Prosecutor’s Office, questioning the indefinite and not temporary use with which the use of the family home was attributed to the mother:
“For the purpose of deciding this question we must start from the premise that the family home is co-owned without specifying both parents, even though it is in the name of the plaintiff in the Land Registry..
This has been declared accredited by the sentences of both instances, attributing to the litigants the condition of co-owners of the property object of the process, which forms a consensual pronouncement, in accordance with which it was established that both litigants continue paying half the installments of the mortgage loan that encumbers the former family home, as well as the IBI and the community expenses concerning the ownership of the referred property.
Secondly, the mother has sufficient economic capacity to have another home in which to carry out the custody regime with her children, as she earns some 3,300 Euros per month.
Even the lower court rulings consider that her economic capacity is greater than that of the father, by fixing an additional maintenance allowance of 280 euros per month for both children.
Finally, on the
protection of the best interests of the childthe Supreme Court states the following:
“The respondent alleges that the principle of the best interests of the children is in force, but this is guaranteed by the shared custody and economic possibilities of both parents to enjoy a decent home to enjoy the company of their children and to assume their rights and duties arising from parental authority (art. 154 CC)”.
If you need legal assistance for a divorce or separation case with children or have any questions regarding Family Law, consult with our specialized lawyers.
