What does the law say about the use of the home after divorce for adult children?

There are several rules to look at as they refer to this matter:

• Article 39.3 of the Spanish Constitution: establishes the obligation to provide any type of assistance to children who are minors or in the situations contemplated by law once they have reached the age of 18, both inside and outside marriage.
• Article 96.1 of the Civil Code: the use of the family home must always correspond to the minor children and, based on them, to the parent who has custody of them.
• Articles 142 et seq. of the Civil Code: the maintenance allowance also includes the right of habitation. In the model of the regulatory agreement for children of legal age, it is possible to opt to continue to keep the family home at their disposal until they are financially solvent or to quantify the amount for room and board and add it to the maintenance allowance.
• Judgment of the Supreme Court of 5 September 2011: the termination of the use of the home for children of legal age cannot be carried out when the interest of the spouse is the most in need of protection.

Several issues are clear from all this. The first is that maintenance is entirely separate from the use of the flat by children over 18 years of age after the divorce. The second is that a child over the age of 18 cannot obtain all or part of the maintenance payments due to him or her through the allocation of the use of the family home.

Therefore, in determining the use of the family home by children over 18 years of age, it is not the question of maintenance that is taken into account, but the needs of the parent who is most in need of protection, if there is one.

The importance of the moment at which the allocation takes place

After all the above, it is clear that the legislation in force is not the same whether the family home is allocated when the children are minors or adults. In this sense, and to be concise, when the children are under 18 years of age, it is always attributed to the custodial parent, considering that the priority is to preserve the interests of the youngsters. On the other hand, if they have reached or exceeded that age, the interest of the parent most in need of protection will always be sought, although this does not mean that the adult is not entitled to receive maintenance and to enjoy the right of habitation.

In fact, in the event that the child reaches the age of majority and, for example, starts university studies, the non-custodial parent will have to continue to pay the child maintenance and, in addition, pay 50% of the expenses arising from his or her new academic situation, just as he or she did when he or she was at school or high school. This category includes the right to accommodation if the child needs to study in another city or country.

The agreement with dependent adult children

The termination of the use of the home by adult children can vary in cases where the children are dependent on their parents. We are talking, for example, about individuals with physical or mental health problems who cannot look after themselves and who are therefore subject to special protection needs as long as they live with their parents.

It is most common to draw up an agreement with dependent adult children in which this issue is set out in detail. Generally, in such documents drawn up during a divorce, it is specified that the use of the family home will always be theirs, even if they reach the age of majority or if the custodial parent changes.

Other issues of interest

When the children reach the age of majority, the Supreme Court equates the situation of the former spouses with that which they would have had if they had not had children with regard to the use of the family home. That is to say, they will have no weight in its attribution. However, the amount of time for which the parent in question will be able to use the house must be clearly specified in the model agreement for children of legal age.

On the other hand, with regard to the sale of the family home once the children are of legal age, some clarifications must be made. According to article 400 of the Civil Code, all members of a community of property, such as a married couple, have the right to divide their property when they so request. However, it should not be forgotten that this property is subject to protection.

The sale of the family home when the children reach the age of majority.

In fact, divorce does not imply that the non-custodial spouse, regardless of whether the children are adults or minors, can stop paying half of the mortgage on the home. This is because he or she still retains 50% of the property and shared ownership of the loan granted for its purchase.

So which prevails: the right to divide or the protection of the use of the family home when the children are of age? In this respect, the law is clear: if there is judicial protection, it will always come first. However, curiously enough, this does not mean that the ex-spouse cannot sell his or her share of the property.

It is very common that, faced with the financial impossibility of paying alimony, 50% of the mortgage on the family home and a new rent, the non-custodial spouse sells his/her share of the residence to the custodial spouse, even if it is only for the mere payment of the instalments. It is also possible for a third party to do so, although this is a rare option. After all, few people will want to buy a house that they will not be able to use until the judicial protection to which it is exposed has been terminated.

Conclusions

In general, experts in the field advise the spouses during the separation or divorce proceedings if there are children of legal age that, in all cases, the use of the family home will be attributed to the one who is most in need of protection, always taking into account his or her personal and economic status at that precise moment. This is the reason why the agreement reached in the settlement agreement will always have a limited duration and will be totally unrelated to the obligations in terms of maintenance payments and other related expenses.

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