May 18, 2021

Who gets the home in case of divorce or separation?


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The attribution of the use of the home is one of the main obstacles that couples face in the event of separation. A problem that becomes more complex when there are children. The solution is always to find the best possible scenario for the minors. After custody of the children, the use of the home is the aspect of the break that most worries and conditions the couple. This is not surprising, considering that it is a factor capable of disrupting most economies.

The Civil Code regulates the attribution of the use of the family home in cases of marriage annulment, divorce and separation, a regulation that also affects common-law couples. Family dwelling is understood to be the first residence of the family unit, the one in which he has lived. When there are no children in the couple, or they are all of legal age, the factor that prevails is the attribution to the spouse most in need of protection, for as long as the judge deems appropriate. This is so whether the property is owned by the two members of the couple, or if it is the exclusive property of the other spouse.

In this scenario, in order to dispose of the home and, for example, sell it, when the use of the home has been attributed to the non-owner spouse, the owner will need his or her consent, or a judicial authorization in its absence.

When there are minor children in the couple, the main factor that the judge will take into account, and the one that the parents must put before an amicable agreement, is the good of the children. The solution will also depend in this case on the type of custody of the minors that is agreed or determined by the Justice.

Single parent custody

When custody of the children is single parent (attributed to one of the parents), the use of the family home will correspond to the children and the custodial parent, regardless of the ownership of the property: whether it belongs to the custodial parent, the non-custodian or a third person.

Due to the difficulties that emancipation in Spain entails for young people, as a result of the high rates of youth unemployment and shortage of affordable housing, traditionally it was understood that this attribution extended until the economic independence of the children, and thus it was reflected in the regulatory agreements. In practice, this meant that in some cases this situation was extended to 25 or 30 years of age.

However, as of 2011 a ruling by the Plenary of the Supreme Court changed the interpretation of the rule, since, according to the court’s argument, In the case of adult descendants, protection and assistance to children is not unconditional and can be exercised in other ways; for example, by delivering an economic amount.

Use of the dwelling in joint custody

In cases in which the parents agree to a shared custody regime, something increasingly common, the interest of the minors continues to prevail, with the difference that they live for alternate periods with each of the spouses.

In the absence of agreement between the parents, It will be the judge who decides, putting the good of the children first and taking into account the need for protection of each of the spouses and their possibilities of having a decent home during the periods in which they live with the minors.

When the property is owned by both parents, one solution is for the minors to always remain in the family home and for the parents to take turns at home depending on the periods of coexistence with the children.

In fact, this is the ideal solution for minors when joint custody is considered. Nevertheless, requires that each of the spouses have, in addition to shared housing, another residence for periods in which they do not live with minors, which for economic reasons makes its application difficult.

The other possible solution, when the family home is owned by both, is for the judge to assign its use temporarily to the parent most in need of protection, for which the other parent must have a decent home for the periods in which they live with the minors. .

If the family home is the exclusive property of one of the spouses, the judge will attribute the use of the home to the parent with the greatest need for protection, for which the other spouse must have a decent home to coexist with the children. This attribution is independent of whether the most needy parent is the owner of the home or not, since in the event that it is not, the judge may also assign the use of the property temporarily.

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