The article 96 of the Spanish civil code states that:
In the absence of agreement of the spouses approved by the Judge, the use of the family home and objects of ordinary use on it, correspond to the children and the spouse in whose company they remain.
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Therefore, what is provided by the Spanish civil code, is that the use of the family home will be granted to the spouse who has custody of the children, is a measure of protection of the interests of the minors, which in principle will not be forced to leave the family home.
This article, which the courts understand that refers just to minor children (not to any children), does not take into account for the purposes of attributing the use of the family home the right of property or ownership, that it is irrelevant that the property belongs to one of the spouses or both, it is only relevant who keep the care (custody) of the children.
The Spanish courts have interpreted this article in the sense that it should not be understood as an automatic attribution, since it will depend on the circumstances of each case, if the spouses have other means, or not, if other properties exist, etc.
In some cases, the application of this article can be absolutely unfair, since it could happen that the spouse who has custody has much more income than the one that does not have the custody, and that the property is owned exclusively by the non-custodial spouse. The application of this article would suppose that the non-custodial spouse, with less income would be left without the use of his/her own house, and would have to continue paying the loan or mortgage (if applies) and also pay a rent to live in another house.
After the divorce can arise some unfair situations, for example after the use of the family home being agreed ni favour of the custodian spouse, this spouse starts a new life with a third person in the family home, and that the spouse with no custody, who is the owner cannot use the property, but must keep paying the mortgage loan while it is used by a third person outside the marriage, evidently, this change of circumstances, that is to say the coexistence with third person must be taken into account.
This situation was analysed in the recent ruling of the Supreme Court of Spain, number 641/2018, of November 20, 2018, whereby the Court considered that the introduction of a third person changes the status of family domicile, and therefore, this change in circumstances can affect and extinguish the right to use the family home after the divorce. Coexistence with a new partner, which also, as we explained in other articles, can also extinguish the right of the spouse to receive a compensation or maintenance.
This argument can be also unfair, because, in reality, it can end up harming the minors rights, who are not responsible for the custodial spouse having a new partner or not, but may be deprived of the use of the family home, in addition, it could be that the third person (new partner) do not make any economic contribution, so we understand that it should carefully study each case.
If you want legal advice about divorces or separations in Spain, contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel:+34 966 426 185
E-mail: info@white-baos.com
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