Attribution of the use of the home to the children

Whenever a divorce occurs and there are minor children involved, the use of the family home is one of the most controversial issues. After all, if there is no agreement between the parties, judges must always try to look after the interests of the children. Our team of lawyers would like to talk to you in depth about this issue and the specifics of the current legislation.

The allocation of the use of the family home in the case of divorce with minor children

When a couple separates and there is an agreement between them to sign a regulatory agreement specifying who has the use of the family home and custody of the children, there is usually no problem. However, when this does not happen, it is the judge, on the basis of the Civil Code, who must decide. The following situations may arise:

Sole custody

Only one of the two parents of the children has custody of them. In this case, recourse must be had to the provisions of Article 96 of the Civil Code. This states that both the use of the family home itself and the ordinary objects contained therein belongs to the custodial spouse and to the children under the age of 18.

Split and divided custody

Split custody is where one spouse has custody of one or more children and the other spouse has custody of the rest of the children. It is not very common and is not usually granted unless there are compelling reasons for it, such as, for example, a destructive sibling relationship or lack of means to take care of all the offspring in the case of large families.
Split custody, on the other hand, is where custody of the children is awarded to each of the spouses in alternate years or in specific periods of months. When this occurs, it is most common for one spouse to have custody during the school year and the other during the holidays. 

In both cases, judges usually make use of the provisions of Article 96.2 of the Civil Code to allocate the use of the family home. This text gives the judge the power to decide on the basis of what he or she deems appropriate depending on the situation. 

Joint custody

The Civil Code does not specify anything about the use of the family home in the case of joint custody. Therefore, lawyers usually resort to the provisions of article 96.2 of the Civil Code, which we have referred to above. Therefore, in this type of case, it will also be the judge who decides.

Factors influencing the allocation of the use of the family home to the children

When, after the breakdown of the marital union, and there are children under 18 years of age, the parents do not agree on the attribution of the use of the family home and a system of shared, split or divided custody is established, the judge will decide to whom it corresponds according to the following:

Which interest is most in need of protection?

The interests of the child are considered to be superior to those of the parents or any other interests that may be involved. On this basis, the judge examines the case to determine which of the two spouses is most in need of protection. To do so, the following questions are asked:

• Does either parent have a private home in addition to the family home?
• Is it possible to sell the family home and, with the proceeds, buy two decent homes?
• Is the purchasing power of one parent significantly higher than that of the other?

Ownership of the family home

To this should be added the ownership of the family home, the use of which is to be attributed to the children. In this sense, it is not the same if it belongs to only one of them as it does to both or to a third party.
Based on this circumstance, there may be four different scenarios, which are as follows: 

• Use of the family home by both spouses: the judge will determine that both parents will share the use of the home for alternating periods, which will be those in which they have custody. Therefore, when the attribution changes, the parent will have to find another place to live until the agreement dictates that he or she regains custody.
• Temporary use of the family home by the non-owning parent: this is usually the case when the home is owned by only one of the spouses and custody is awarded to the non-owner. In addition, it must be the case that he or she has custody and has no other home in which to provide for the basic needs of the minor children.
• Temporary exclusive use of the family home by one parent only: this usually only occurs when there are significant differences between the resources of the two spouses or one of them does not have the possibility of having another suitable home and the other one does.
• Exclusive use of the family home to the owner spouse: if possible, this is the model that generates the least problems. This is mainly due to the fact that, while respecting custody rights, ownership rights are also kept intact. In order for this to be the case, the non-owning spouse must have a home in which to reside during periods when he or she does not have custody.

It may be the case, as specified above, that the ownership of the property does not belong to either parent, but to a third party. In most cases, this is usually a relative of one of the two spouses and, generally, an ascendant.
The doctrine recommends, in this type of case, that the use of the family home should not be attributed to either of the two parents as there may be disputes and problems with ownership. This is only done in cases where neither parent has the capacity to have a decent home in which to guarantee the rights and needs of their children during periods of custody. 

What happens to the use of the family home when the children reach the age of majority?

In order to determine this question, it is necessary to resort to the ruling of the Supreme Court issued on 23 January 2017. That text, which establishes case law, states that the attribution of the use of the family home at the time when the children reach the age of 18 corresponds to the spouse who needs more protection. This is because, at that point, the parents must be placed on an equal footing.
As you will have seen, the allocation of the use of the family home to the children is a complex issue and depends on many factors. Therefore, should you still have any doubts after this article, we advise you to contact our team of lawyers in Madrid. They will be able to advise you and help you with whatever you need.