The Plenary of the Civil Chamber of the Supreme Court, in its Judgment of November 20, 2018, has resolved a matter on which it had not previously expressly pronounced.
The matter focuses on the meaning to be given to the presence of a third party (i.e. a divorcee's new partner) in a house that comprised the family home before a divorce when the right to use this family home, after the divorce proceedings, is given to the wife with custody of the minor children by virtue of what is indicated in article 96 of the Civil Code.
The ruling issued by the Plenary dismisses the Appeal filed by the Public Prosecutor against the judgment pronounced on January 15, 2018 by the Provincial Court of Valladolid, introducing a change to the law, based on the following:
1.- The consideration that the intromission of a third party in the home, with a relationship between a stable couple with the parent to whom the custody of the minor children was attributed, means that this home loses its meaning as a family home.
2.- The home cannot be considered as a family home if it does not serve the purpose of the marriage (which was eliminated by the divorce).
3.- The home in a divorce procedure, the use of which is clearly established as that in which the family has lived with the intention of staying there.
In the case we refer to here, the intention of comprising a family unit has disappeared as a result of the intromission of a third person in the home, which is now serving a (new) family that has different composition to the previous one for which the home was formerly designated.
4.- This does not harm the interest of the minors beyond providing them with housing that meets their housing needs with dignity and decorum. It is not possible to allow them the use of a property that does not function as a family home since it ceased to serve this purpose at the time of the marital breakup, the exception to this being the provision of the time necessary to liquidate the legal partnership between both parents of the existing property.
In short, when a third party lives in the family home in analogous affective relationship to the marital one with the spouse who was favoured by the attribution of the use of said housing in a divorce proceeding, the use of that family home can be modified in a subsequent procedure, and the spouse and children who were favoured by such decision can lose the use of the aforementioned housing, which may be interpreted as injuring the children's interest.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.