The matrimonial home is considered to be a special type of asset under Spanish divorce law. Property that is used by any children of a broken-down relationship will in particular be considered to be for the use of the children primarily, and their parents secondarily. That being the case, in such circumstances it may be treated differently from other assets following the dissolution of a marriage.
In the simple scenario where there are no children and the spouses own equal shares of the property, there may be an agreement to sell the property and divide the proceeds equally.
Alternatively one of the spouses may buy the other’s portion and retain the entire property alone.
Should one of the spouses refuse to sell either to the other or to third parties it is possible to have a judicial auction of the property, known as ‘actio communi dividundo’. However, this solution is not recommended as it takes time and is very costly.
Where there are children a different analysis is applied because the protection of the children becomes the priority.
Often a court in Spain will give the mother of the children custody and, consequently, the use and enjoyment of the matrimonial home. This conferral may be given a time limit, for example, until the children reach the age of majority.
While the above scenarios vary in complexity, they are fairly common place. More unusual circumstances do arise from time to time requiring answers to difficult legal quandaries such as: what happens when the property used by the couple during the marriage is in fact owned by the parents of the non-custodial parent who no longer has use and enjoyment of the property.
Complications have also arisen as a result of circumstances where the spouse awarded use and enjoyment of the property later shares the property with a new partner who might be seen to benefit from the fact that the non-custodial parent is paying perhaps one half of the mortgage.