Following divorce, a new partner may change rights to live in spousal property

Loss of use of the home after divorce. Living with a third party

IN this article, we will explore the possible loss of use of a property following divorce specifically if living with a new partner of the spouse who had been awarded the property in any settlement.

Attribution of the use of the habitual residence in a divorce proceeding

It is normal, that in a divorce proceeding, the use of the family home is passed to whichever parent has custody of any minor children.

Thus, if both parents were owners of the property and both also responsible for any mortgage loan, if one of them is awarded custody of any children it is customary for he or she to also be awarded the use of the house.

Both of them would however would continue to own property and pay off any mortgage loan as previously but the use of the property would be for the custodial parent.

Living with a new partner. Consequences regarding the use of the family home.

But what happens if the person who has been granted custody and use, starts living with a new partner?

There are different opinions on the consequences of the occupation of the property by a third party.

On the one hand, some believe that it is irrelevant, since the use of the property is actually granted to the children. Therefore, if their mother or father lives with another partner, it should not affect the child’s rights.

On the other hand, others believe that the creation of a new couple means that the property should no longer have the status of a family home. Therefore, the right of use in favour of the custodial parent could be claimed to be ended.

The Supreme Court Judgment of 11/20/2018

The Supreme Court has confirmed that the second of the doctrines is the correct one.

Thus, it has basically said that in these cases, the property on which the use is established is where the family has lived together, with a desire to remain.

This situation therefore disappears with the entry of a third party. Ceasing, then, to serve, the property, for the purposes of marriage as, now, the property serves a different family.


A court can order the loss of the use of the house after the divorce, if the parent who has such use lives with a new partner. But, even if it this is the case, and a shared use could be requested, or a sale of the property, the parents must ensure that the children have a decent home in which to live.

This may also change the alimony payments to be made for the care of the children if a new home needs to be found.

If you want legal advice on this matter, contact us.

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The information provided in this article is not intended to be legal advice, it merely conveys information related to legal issues.

Carlos Baos (Lawyer)

White & Baos

Tel: +34 966 426 185


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