My wife and I are British residents in Spain, we are going to divorce. We wish to establish a shared custody for our common child. We live in a house owned 100% by myself, my wife has no properties. If we do not reach an agreement and end up going to court, can the court force me to let my wife to continue to live in my house ?.
Dear reader, thank your for your legal consultation.
It is very important for you to try and reach a suitable agreement for all parties, which specially protects the children of the marriage.
In response to your above inquiry, we will not on this occasion cover the maintenance between spouses, or maintenance payments or support to minor children, we are going to focus solely on the allocation of the use of the family home.
When custody is attributed to only one parent (father or mother), normally this parent will be awarded the use of the family home, to use it together with the children, as specified in Article 96 of the Spanish Civil Code, which literally says:
“In the absence of agreement between spouses approved by the Court, the use of the family home and the objects of ordinary use would be for the children and the spouse in whose company they stay.”
If there are several children and one stays with one parent and another with the other parent, the same article says that “the court shall decide the appropriate”.
Regarding the attribution of use of the family house to a spouse who is not the owner of the property, in cases of joint or shared custody, there is no established rule in Spain. Or even clear court precedents regarding what would happen. In a recent court decision, the Supreme Court stated that it is upto “the judge to decide as appropriate.”
Therefore, the judge should analyze the specific circumstances of your case, and take into consideration:
1. The principal interest to be protected: i.e. the need to ensure that the children can be with both parents.
2. Secondly, your property rights as sole owner of the family home.
Therefore, the judge will assess your specific circumstances, such as if you have other properties that you can use, if your wife has sufficient funds to rent a property, what is the best solution for the child, etc. Then they will decide whether to allow your wife to use the property which has been the family home, to which you are the sole owner. If so, normally they would allow it for a limited period of time. In any case, to give a more in depth advice, we would need carefully analyse your case in greater detail.
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)
Spanish Law firm.
White & Baos 2014 – All rights reserved