Divorce and separation in Spain: What happens to the family home?

LAST UPDATED: 25 Nov, 2015 @ 09:15

Antonio Flores
Antonio Flores

THE title is short but the consequences of divorce are often complex, far-reaching and can last decades.

When a couple, married or otherwise, decides to end the joint use of the family home following separation or divorce, the family home – whether jointly or privately owned by one partner – becomes the asset that is the subject of the greatest disputes.

These concerns arise, for many and obvious reasons, both personal and financial.

In Spain, courts have certain guidelines that they tend to stick to when deciding about who is to retain possession.

These include: ownership situation, existing judicial precedent, social inertia, mutual or unilateral decision (very often, one partner leaves willingly) and, most importantly, children.

The following guidelines can help us understand what we can expect when in this situation:

• Where children are involved, 95% of the time the use of the family home goes to the mother because she is granted custody in 95% of cases.

• Where children are not involved, the judge can decide that possession, for a prudent period of time (some courts establish this to be 6 to 12 months), goes to the non-owning spouse/partner if he/she is in more demand of protection (lack of income, financial situation, or illness).

• Where children are not involved, the property is not owned jointly and both parties are in a similar financial situation, the owning partner will have the right to enjoy possession. Where it is jointly owned, courts expect partners to agree on its use, failing which, the property is sold at public auction and the proceeds, if any, divided.

If the property is not sold at auction, a common occurrence particularly where a large mortgage is registered, the court can allocate the use of the property by alternate periods of time and, very exceptionally, it could even be partitioned with a wall if the home lends itself to it.

• Situations of domestic violence are extremely complex because the male partner generally spends time in police cells, gets prosecuted and normally, regardless of the outcome of the proceedings, is given a restraining order that automatically means he is out of the family home.

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Lawyer Antonio Flores is the legal columnist for the Olive Press. Antonio has been practising law since 1997, year in which he began working for a large law firm in Marbella as a Property Lawyer. In 1998 he left the company he had joined a few months earlier, and used his knowledge and the experience gained to build his own practice. He is known throughout the community as independent, reputable and trustworthy. Through a combination of strong work ethics, determination and international exposure, his competence of Spanish Law is unparalleled and demonstrated through his fluency in English and Spanish.