How long can my ex-partner live in the apartment?
In this article we will analyze one of the most problematic assumptions in the process of separation and divorce of a couple, this assumption is the attribution of the use of the family home.
It is necessary to differentiate that what is discussed when the use of the family home is requested is not full ownership, but rather the use and enjoyment of the home.
If the couple has children, who will use the family home?
When there is no agreement between both spouses, the use of it corresponds in the first instance to the children and the spouse in whose company the minors remain.
It may be the case that some children remain in the company of one parent and the rest of the other, in this case the judge will decide what is appropriate, based on the circumstances of each specific case.
What if the couple has no children?
If there are no children, the use and enjoyment of the home corresponds to the owner of it, that is, to its full owner. However, the use of the home for a prudent and agreed time may be agreed to with the other non-owner spouse, provided that he or she is in a particularly vulnerable situation, such as illness, incapacity for work, etc.
What happens when the family home is owned by both or by the owner spouse who does not have the right to use it?
If these circumstances are the case, if the owner spouse who does not have the right to use the home wishes to dispose of it, he or she must request the consent of the opposite party, or otherwise, judicial authorization.
In the event that the home is owned by both spouses, the use of it may only be assigned to only one of the two spouses. In this case, and as a more logical precept, current expenses for the ordinary use of the home such as electricity, water and supplies, must be paid on behalf of the spouse who enjoys the home, unless otherwise agreed.
What happens if the home belongs to the parents of one of the spouses?
Many times it is assumed that the home that is considered a family home is owned by a relative or the parents of either of the two spouses.
The problem often lies when the spouse's relatives or parents have been forced to give up the use and enjoyment of the home, and want to regain possession of it.
In these specific cases, the specific assumptions of each separation or divorce must be analyzed in order to determine what powers of recovery of the property this third party has, many times affected by a sentence or judicial process of a close relative.
What if the house is for rent?
If the dwelling is for rent, it will be possible to determine the attribution that has been set in the regulatory agreement or in the judicial resolution issued by the judge, that is, on the judgment of the process.
It may be the case that the spouse who does not appear in the lease contract can remain in the home, if this power has been attributed in the regulatory agreement.
For this, the situation must be communicated to the landlord within a period of two months from the notification of the court ruling.
In case of being affected by an extraordinary situation, the spouse who has not been granted the right of use, should contact a specialist lawyer, as quickly as possible.
Next, we will analyze the new rights that have been collected and regulated since Sentence 641/2018 issued by the Civil Chamber of the Supreme Court of November 20, 2018, in the cases that the beneficiary of the use of the home lives in it with your new partner.
At first, the courts did not consider this circumstance as a cause for termination, they only limited themselves to modifying the amount of alimony, considering that the new income from a third party should reduce the amount that the spouse needed. in charge of minors to support them.
In this ruling, the Supreme Court is explicit about this issue and determines the following: “the right to use the family home exists and ceases to exist depending on the circumstances that concur in the case (…) this character has disappeared, not because the mother and children have stopped living in it, but by the entry of a third party, ceasing to serve the purposes of marriage".
It is evident that the entry of a third party into the home dematerializes its nature, as it serves a different family in its use that has nothing to do with the purpose dictated in the divorce decree, since the character of family home.
The Supreme Court in ruling 658/2019 of October 29, states the following “the introduction into the family home of a third party, in a stable affective relationship, denatures the character of the home, since it ceases to be family, in the sense. that, while the minor remains in it, a new sentimental partner is formed between his mother and a third party who enjoys a home that is also owned by the plaintiff, who also pays 50% of the mortgage loan ”.
Therefore, we can clarify that the Supreme Court creates precedent in the following statements:
• The right to use the family home exists and ceases to exist depending on the circumstances of the case. It is conferred and maintained as long as it preserves this family character. The home on which the use is established is none other than the one in which the family has lived together as such, and in this case this character has disappeared due to the introduction of a third person.
• It points out that, although the attribution was made through a regulatory agreement by mutual agreement, art. 90 of the CC establishes the possibility of modifying it if circumstances change, as in this case.
This patrimonial imbalance that is generated by the right of use and enjoyed by the user spouse who decides to rebuild their love life when their new partner enters the family home, is the cause of the imbalance and use of gratuity in the granting of the right .
This change in the agreed circumstances causes an unbalanced, unsustainable and unfair situation, since the new partner or third party enjoys free use of the home, intended for family housing and where the expenses of the referred home are paid by your partner's former spouse.
It's funny how art. 101 of the CC establishes an extinction in the compensatory pension for the fact of contracting a new marriage, on the other hand there is no provision that authorizes the extinction of the right to use the originally family home. Therefore, there is no legal norm, that is, no articles that expressly authorize the extinction of the right of use.
Argumentation of the TS?
The Supreme Court considers that the introduction of a third person in the home "changes the status of the family home." In the words of the Supreme Court, the freedom of the other owner spouse to use the home to rebuild his life is respectable, as long as such freedom is not used to the detriment of others.
A new relationship with a couple, causes different valuation elements to be introduced from those initially present, therefore, there is a modification and a variation in the protection of the right to attribution of use.
Does the home cease to be familiar due to the fact that a third party enters to live in it?
The family home is the one that originally grouped the original family. Therefore, the home ceases to have the character of a family member when a third person enters it, to the place where the minors grew up and developed.
What are the legal effects of this judgment?
The effects of this judgment are the extinction of the right of use and therefore, the time limit to the liquidation of the community property. In the event that the same property does not want to be alienated by either of the two co-owners, the share of the common property is always used, awarding the property to one of the two co-owners or the sale by public auction.