When a relationship breaks down, a series of measures must be established regarding the couple’s offspring, such as custody arrangements, parental authority or use of the family home.
Should no agreement be possible, Article 96 of the Spanish Civil Code states that use of the family home is assigned to the children and the parent living with them. These days our High Court tends to favour joint custody as the most desirable option, and it is unusual for child custody to be awarded to only one parent; therefore the third paragraph of the above Article comes into play, whereby the use of the family home is given, for a determined length of time, to whoever is considered to be in the most vulnerable position.
Problems arise when whoever has been awarded the use of the family home lets a third party move in, as the person who has had to move out is in effect “keeping” someone who is not a family member by granting the use of his or her property.
The recent Supreme Court sentence of 20th November 2018 establishes that, in the event of a third co-habitant appearing on the scene, the property will cease to be considered a family home as it no longer serves its original purpose; however, the divorce agreement would have to be legally modified to include the expiry of the property’s stipulated usage, as this would not happen automatically.
If the terms of the divorce agreement are to be modified, we should consider all the factors which led to establishing them in the first place. This means that the use of the property could be awarded according to the minor’s best interests or the use of the property could expire, which would inevitably imply increased alimony for the children, as the need to house them would have to be covered financially rather than in kind.
In short, allowing a third party to live in a property could imply the expiry of the right to use it, although the divorce agreement would have to be legally modified. Contact our experts at AGOTE DIEZ ABOGADOS for advice regarding the expiry of property use.