The Spanish Supreme Court has allowed an appeal and overturned an earlier judgment regarding the use and enjoyment of the ‘matrimonial home’. The court heard that the use and enjoyment of a property in Madrid had been attributed by the lower courts to the the child of an unmarried Spanish couple and – by default – to the child’s mother who had been awarded custody.
The court ruled that according to a previous judgment by that court and an analysis of Article 96 of the Spanish Civil Code, that the application of Article 96 must be the same as in the case of married couples such that the use and enjoyment of any home can only be assigned to one of the parents where that property “constituted the habitual family home in the senses that it is the place in which the family have lived as a family unit, with an intention of permanency”.
When dealing with an unmarried couple, the attribution of the use and enjoyment of the family home must be subject to the same rules as applies to married couples. In neither case may the use of a property be attributed to the children or either spouse or partner in which they have not lived together and used as the family home.
Accordingly, in the present case, as the couple had never used the property as a family home, it’s use and enjoyment could not be attributed by the court to the children or their custodial parent but should remain in the possession of the original owner, the non-custodial parent.