In any separation or divorce the issue of the right of use of the family home is always conflictive.
There are many elements that converge at the time of making a decision in this regard: emotional factors, the economic situation of the future ex-spouses, joint mortgagesAnd everything becomes even more complicated if, in addition, we introduce into the equation the minor children, and the direct relationship of this issue to the custody issue. In many cases, all these elements make It is impossible for couples to reach an agreement on who will have the right to use the family home, The judge must decree its destination based on purely legal criteria, specifically those set forth in Article 96 of the Civil Code: custody and the interest most in need of protection.
Article 96 In absence of agreement of the spouses approved by the judge, the use of the family home and of the objects of ordinary use in it corresponds to the children and to the spouse in whose company they remain.
When some of the children remain in the company of one and the rest in the company of the other, the judge will decide what is appropriate.
Not having children, it will be able to be agreed that the use of such goods, for the time that prudentially is fixed, corresponds to the spouse not holder, whenever, in view of the circumstances, they made it advisable and their interest was the most needed of protection.
In order to dispose of the housing and indicated goods whose use corresponds to the non-owner spouse, the consent of both parts will be required or, in its case, judicial authorization.
Custody or the interest most in need of protection, keys to the use of the family home
Based on the aforementioned 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 the fact is that, according to the literal wording of the article itself: “in the absence of an agreement of the spouses approved by the judge, the use of the family dwelling and of the objects of ordinary use therein corresponds to the 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 an interest in need of protection, and for a maximum period of 2 years.
The right of use of the family home when the children reach the age of majority
It is logical to think that, if we establish as a central element in determining the use of the family home the assignment of custody of minor children, when they cease to hold such status, the use and enjoyment of the home that was assigned for that reason should be reviewed.
The Supreme Court ruled along these lines in 2011, understanding that the attainment of the age of majority by the children entails the cessation of the application of this regime. That line of jurisprudence has been strengthening until today, where we can observe a clear criterion in some of its judgments in this regard, as in the one cited below, dated January 23, 2017, which states that. “Once the children have reached the age of majority, such objective variation causes the criterion of automatic attribution of the use of the dwelling established in Article 96 to cease in the absence of agreement between the spouses, and the question of its assignment can be raised again, and both spouses can request a different regime from that which was initially assigned due to the minority of age of the children, in concurrence with other supervening circumstances”. But, then, how is the use of the family home determined after the children reach the age of majority? At this point, in the event that the home belongs to one of the parents and the interest of the non-owner spouse is not at stake, 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 the latter.
However, it is possible, when there does exist that interest more in need of protection in relation to the spouse who is not the owner, that the use of the house is assigned to this spouse on a temporary basis.
Once the children have reached the age of majority, the criterion of automatic assignment of the use of the house in favor of the parent who stays with the children is left behind and a new system of assignment is proposed, not in favor of the parent who is with the children, but in favor of the parent who is with the children, but in favor of the parent who is with the children. in favor of the most needy. Likewise, when the house belongs to both spouses, the conflict is served, since the judge will have to assess which of the two should reside in it. Therefore, it is more than advisable to request in the claim or in the answer to the claim (or to include in the regulatory agreement) how the extinction of the right of use will be instrumented, setting a specific date, which could be the date on which all the minors reach the age of majority, for example.
It is also possible to provide for the termination of the right of use of the spouse and to refer to his or her duty to vacate the property on that date, even clarifying that the spouse may be evicted if he or she does not vacate the property within the stipulated period.
It is also possible to foresee measures such as the payment of a compensation for each day that the non-owner parent spends in the property since the termination of the right of use. If you need help in a case related to Family Law or attribution of the use of the family home, do not hesitate to contact me.
