The Supreme Court has ruled that the father or the mother have custody of her children loses the right to enjoy the family home in case you live with a new partner in a stable manner. This is the first time that the first Hall of the High court rules in this regard. The lawyers and judges surveyed that are satisfied with the decision, qualifies as a “revolution in family law”, since in this test case on a matter that up to now had aroused controversy. The majority of courts considered that, in the interest of the child, the use of the family home should be awarded to the parent / guardian, regardless of whether conviviera with a new partner.
The full of the First Chamber of the Supreme has ruled on the case of a family of Valladolid. The couple divorced, and the wife won custody of the minor children and, therefore, the right to use the home they had shared. Subsequently, he moved into the home her new boyfriend. The father requested a change of measures. The court of first instance decided to reduce the alimony, but to maintain the right of use of the dwelling. The man appealed, and the appellate court reinstated the board and stated that “the right of use of the home attributed in their day-to-wife and children remained not extinguished at the time that they would proceed to the liquidation of the marital society”. The office of the prosecutor appealed in cassation, but the high court has dismissed the appeal.
According to the decision of the Supreme, with date of 20 November, “the introduction of a third person does to lose the home your old nature to serve in its use to a family and different”. The room “does not deny” the right to new partner relationships, “thus calling into question is that this freedom is used to the detriment of others, in this case, of the parent to non-custodial”. The sentence refers to the Organic Law 8/2015 Legal Protection of minors, “which reinforces the right of the child to which your interest will be priority, taking into account, among other things, that such interest does not restrict or limit more rights than it protects”.
MORE INFORMATION The life as a couple in Spain: marriage and divorce, The demands of divorce and separation down to 4.5% in 2017
The chamber considers that “the interest of the children cannot be divorced absolutely from their parents, when it is possible to reconcile both”, so that “the interest in the abstract or merely speculative is not sufficient.” Therefore, “the same decision adopted in its day by the parents to put an end to the marriage, should now have to act in the benefit and in the interest of their children Redwin in respect of housing.” And adds that the character ganancial property facilitates other economic solutions that allow precisely this reconciliation of interests as, for example, that the third buy the part of the house that corresponds to the that does not reside in it.
“The verdict is very positive. It is a pioneer, a revolution. Until now, only the Hearings of Valladolid, Valencia and Almeria had been pronounced in this line. Of rest, the criterion was that, if you had a child, it is respected the use of the dwelling, regardless of whether in the home also conviviese the new couple who had custody,” says Maria Dolores Azaustre, vice-president of the Spanish Association of Family Lawyers. “In family law, each case is special and requires a detailed study, but this criterion gave rise to situations very bloody, as in the case of parents who leave home, have to pay the mortgage of the family home, the rent, and then find out that the new partner of his ex-wife has moved to the house, free of charge, without paying anything”, he explains. “This could not afford. You can’t redo your life at the expense of the economic interest and personal of your former spouse, especially amparándote in the interest of a minor,” adds Azaustre. “Until now, when I had some affected, told him to not initiate a procedure because I was not going to achieve anything,” he says.
it Is the case of Luis, a fictitious name. He is the owner of the family home. When separating, your ex-wife won custody and he continued to pay the mortgage. The mother remarried and has new children. “He has waited to reach the age of majority to request that they extinguish the right of use. But with this new ruling, anyone who looks at your situation, you can resort to before”, explains Paloma Zabalgo, attorney for the family of Madrid. “This represents a change of fundamental doctrine. There are many cases as well the firm”, he adds.
“I don’t say a barrage of demands, but yes, there will be a significant number of procedures of modification of measures in the wake of this judgement”, exposes Juan Pablo Gonzalez del Pozo, of a family court in Madrid. “It is important. There was a great controversy between the lawyers and family judges. There were two positions. On the one hand, consider that the minor children are still in need of housing, regardless of whether the parent custodian living with a new partner, without prejudice to that could lower maintenance. On the other hand, understand that entry into the domicile of a third person is to lose the right of use,” he continues. “I believe that now we will have to make the judges in our sentences is to set a deadline for the occurrence of the liquidation of the marital society”, he argues. “Because it does not set a deadline is to give a weapon to one who does not want to leave the house”,
