Family residence

According to current criteria of the Supreme Court, it is the one inhabited by the parents and children until the dissolution of the marriage (Verdict 42/2017, of January 23, and 517/2017, of September 22).

Second homes will not be considered as a family residence.

What are the criteria for its attribution?

The civil code establishes a series of criteria in a staggered manner:

1. Agreement: If the parties have established any agreement, it will govern.
2. Minor children: If there are minor children, it will be attributed to them and to the spouse with whom they remain until they all reach the age of majority.
3. Separated children: When some of the children stay with one spouse and the remaining ones with the other, the judicial authority will resolve the matter.
4. Without children: In the absence of children, it may be agreed that the use of such property belongs to the non-titled spouse for a prudently fixed period, provided that, considering the circumstances, it is advisable, and their interest is the most in need of protection.
5. Minor children there is one in a situation of disability: If among the minor children there is one in a situation of disability that makes it advisable to continue using the family home after reaching the age of majority, the judicial authority will determine the duration of that right, based on the concurrent circumstances.

What happens to the family home in the case of shared custody?

This scenario is not regulated in the Civil Code, so jurisprudence attempts to answer this question by establishing that, not finding a solution in Art. 96 CC, the closest regulation would be that of its second paragraph, which refers to cases where custody of minor children is shared between their parents; that is, when some remain in the company of one parent and the others with the other. It is not exactly the same case foreseen, but it is assimilated in the circumstance that both litigants have the status of custodial parents.

Thus, special attention must be paid to two factors:

1. The interest most in need of protection, which is the one that allows reconciling the periods of stay of the children with both parents.
2. Whether the home that constitutes the family residence is the separate property of one spouse, both, or belongs to a third party.

How long does this right of use last?

In the case of minors, the attribution of the family home lasts until they reach the age of majority, but in any case, it is important to emphasize that it is always of a temporary nature.