CRISIS MATRIMONIAL Y CAMBIOS EN LA ATRIBUCIÓN DE LA VIVIENDA FAMILIAR.

Abstract

The attribution of the use of the family home or homestead is one of the most controversial aspects that arise during a marriage crisis. In this paper I make special reference to the forms of attribution of the use of the family home that are regulated in article 96 of the Spanish Civil Code (CC), and the problems it raises. Reference is made also to the recent case law, very abundant in this area and often contradictory especially in the courts of appeals. I propose a reform of article 96 CC, because the circumstances are no longer the same as when Law 30/1981 was enacted. In most cases, the house is owned by both spouses, and is the property of greater economic value in their estate. So the best solution, in my opinion, would be to sell it and split the proceeds between the spouses. The attribution of the use of the family home on the basis of shared custody and guardianship, a factual situation now lacking in this precept, should be regulated. I advocate that the same protection granted to the spouse or former spouse in cases of marital crisis regarding the homestead, and that extends to the objects of ordinary use, be granted to the widower who has lived and shared his or her life with the deceased; this is, that the use of the family home be attributed to them if the circumstances made it advisable, and their interest was the most in need of protection. That, without counting it as part of their half of the community property, especially considering the community estate has been made between both spouses.