In this post we comment on a ruling handed down by the High Court of Justice of Catalonia (TSJC) that once again touches on a key issue: the attribution of the family home after divorce, and its limits and boundaries. The case we are discussing today is less frequent than usual: if in most cases there is a debate about who is in charge of the custody and, consequently, to whom the use of such housing is usually attributed in preference, this time we are talking about a case of disability. Specifically, the Court rules on the right of use of the family home in the case of a child who is judicially incapacitated. We will tell you in detail the content of this sentence and we are at your disposal to answer any questions about it, as well as about any point related to Family Law.
Use of the family home and incapacitated child: judgment of the TSJ of Catalonia
The judgment concerns a divorced couple with a disabled child.
The former family home, which is jointly owned by both parents, was initially awarded to the mother and the child.
Subsequently, the mother voluntarily relinquished her right of use, and it was judicially declared “disaffected from family use”, which means that there is no right of use by either of the couple. The house was then rented for a period of time.
At the end of the rental period, the mother, with the father’s approval, returned to the home together with her son, who was at that time subject to a process of precautionary measure of incapacitation. This return to the former family home was consented to by the father who, “for the good of the common son”, accepted “a temporary attribution of use until the house is sold, the sale of which has been managed for some time by several real estate agencies”.
However, the mother raised before the courts the possibility of this right of use becoming permanent, given the son’s condition.
Thus, the question that arises is whether the use of the former family home can be awarded again to one of the children who, pending family proceedings, is judicially declared a person in need of parental assistance (previously declared incompetent) and to the parent who takes direct care of him.
The court’s response in this case is positive, but with limitations.
Thus, it rejects the mother’s claim to establish an indefinite right of use, limiting it to a period of one year.
It should be remembered that, in this case, the father agrees with the temporary attribution of the use of the home to the son and his mother, but only as long as the home is not sold.
He also requests that the wife be in charge of “all the ordinary expenses of conservation, maintenance, repair of the dwelling, supplies, taxes and annual taxes (IBI and garbage) that are levied on the dwelling” during this period of time.
The arguments of the TSJ of Catalonia: no to an indefinite allocation of the use of the home
These are the arguments of the TSJ of Catalonia:
- The claim to assimilate the situation of a person in need of parental assistance to that of a minor, in order to attribute the use of the home to the appellant for an indefinite period of time, cannot be accepted.
- The attribution of the use of the dwelling does not properly affect the interest of the son, since he has not always needed the dwelling, returning to it by decision of the mother after the departure of the tenants who occupied it.
- Given the mother’s lack of need to occupy the house indefinitely with her son, she is granted its use for one year from the date of the finality of the cassation sentence, in order to facilitate the sale of the house.
- The jurisprudence assures:
- “(…) that although it is true (…) that incapacitated persons deserve the same protection as minors and that the former must be assimilated to the latter with respect to the rights to which they are entitled, it is no less true that both must be protected when they really need it”.
- Minor children are not always linked to the use of the family home.
It depends on the cases and the concrete situations.
But this is preferably attributed, temporarily, to the parent who has custody, while it lasts.
The same happens, by analogy, with respect to incapacitated persons (…)”. - In this case, the character of family dwelling disappeared, because the non-use by the parents and children led to a final judgment declaring the right of use extinguished.
The reintroduction by the mother with one of the children restored the dwelling to its former nature to serve in its use by the family. - In this case, “the request to grant indefinite use of the family home to the appellant and mother of the common son is based on the fact that the latter has been judicially declared a person in need of parental assistance and on the basis of the best interests of this son, as well as on the characteristics of the home and the area in which it is located”.
- However, the first instance sentence itself assures that “the mother has recognized that she cannot meet all the expenses of the house, gardening, heating… and that she lives in a part of the house because it is very spacious”.
In addition, both parents agree on the high volume of expenses involved in a house of these characteristics.
(…).
As much as the son has lived for years in that house, “it is also clear that he left it on one occasion to move to Barcelona, so that an eventual change of address should not mean a great harm to him, especially if he does not change town.” - Furthermore, “if we take into account that the situation of the son is, in principle, permanent, we see that we would be depriving the father of enjoying a part of his patrimony indefinitely. If this deprivation were justified, there would be no impediment in maintaining it in a judicial resolution, but there is no such need”.
- In any case, given the characteristics of the family home, “with its sale both parties will be able to cover their housing needs and those of their son, keeping him in the same town”.
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