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 a divorce in Spain.
1. Simple Scenario
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.
2. Where one owner refuses to sell
Should one of the joint owners of a property in Spain refuse to sell - either to the other owner or to third parties - it is possible to have a judicial auction of the property, known as ‘actio communi dividundo’. However, this option of effective ‘forced property sale’ takes time and involves legal fees as well as notary and auction related fees.
According to the Spanish Law, nobody can be obliged to continue a co-ownership against their will. A Court process exists to allow for the dissolution of joint property ownership in Spain, and which will share and distribute proportionally the property and the proceeds of its sale.
Besides that, pending debts between the owners can also be claimed and compensated from the proceeds of selling the Spanish property, if the debts are related to the property (payments for the mortgage, community expenses, repairs?). So, where one partner is refusing to sell, or is dragging their feet, the other partner may resort to legal proceedings to force the sale of the property. However, it is far from a perfect solution.
This is because, if the proceedings are successful, the result is to force the sale of the property at public auction by direction of the Court, a common problem is that there is always the risk that the property will be sold at a lower price than its real value -or even, in some cases, especially when there are mortgages or other charges in the property, that there is no bidder in the auction. (It is also worth noting here that the co-owners can also bid in the auction). Accordingly, money can be lost as a result of the proceedings unless a reasonable offer is made at auction.
Another problem with these solutions is the associated cost - the proceedings in Court are quite expensive. Not only the solicitor’s fees will have to be paid, but also the fees of the Procurador (who is required by law to represent the plaintiff in the Court in these kinds of proceedings), and the fees for the assessor that will value the property, fixing the price for the auction.
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.
3. The Marital Home is Owned by the Parents of One of the Spouses
In the situation where the free use of the property was granted by the parents of the spouse who no longer has use and enjoyment of the property, the majority of the courts have decided that such a gift may be considered ‘precarious’ and therefore the situation could be terminated when deemed convenient by the true owners. i.e. the parents of the non-custodial parent. *
4. The Spouse Granted Sole Use of the Home, shares it with a new Partner
Regarding the situation where the use and enjoyment of a joint property is granted by the court to one of the spouses who later shares the property with a new partner, whether the circumstances require a change in the use and enjoyment of the property would seem to depend on whether there are children involved.
Where there are no children, the use and enjoyment of the property will have been conceded to the particular spouse because the court will have evaluated the situation and decided that this spouse was more deserving of protection than the other.
Simply put, once that spouse is living with a new partner, the new circumstances may well be sufficient for the judge to consider, upon a request made by the former spouse and (at least part) owner of the property, that the situation that gave rise to the need for greater protection no longer exists and that the property should be returned to the former spouse or sold.
If, on the other hand, there are children, the use and enjoyment is in reality indirect, as the use is really in favour of the children. Accordingly, should the spouse granted use and enjoyment of the property decide to share it with a new partner, this would not extinguish the rights enjoyed by the children.
5. Impact of a new Relationship on Use of the Marital Home after relationship breakdown
The above reasoning may be modified where the sharing of the property with the new partner may be considered detrimental in some way to the children, it being the interests of the children that are paramount in the eyes of the court at all times.
6. Other Relevant Factors
It has also been held by the Court of Appeal in Zaragoza, when applying the Law of Joint Custody passed by the Aragon Parliament a year ago, that where the property was owned solely by the father of the child, that the property should be returned to him once the child had reached the age of 12.
The Court decided that the mother being relatively young, and working, had the same responsibility to provide a house for her child as the father.
7. Responsibility for the Mortgage after divorce or separation
Any mortgage remains the liability of those who signed it so, for example, in the case where both spouses are joint owners of the matrimonial home and both are signatories to the mortgage, then both remain equally liable after a divorce.
The financial institution is not concerned with the specific circumstances of the use and enjoyment of the property and so, the non-custodial parent who is no longer using the property must continue to pay the mortgage instalments or face having the property repossessed.
Should the custodial parent start a new relationship, it may be open to the non-custodial parent to make an application for a substantial change in circumstances in order to press for a sale of the property and division of the assets.
