Ownership and awarding of the use of family dwelling (Practical problems and reform proposal on an inadequate regulation)

Abstract

Time and practical reality have shown the inadequacy of the regulation on the matter of assigning the use of the primary residence at times of marriage crisis situations, such a core matter of family law. The fundamental rights drawn up in the Constitution, specifically the right to housing, and, as a consequence of that right, a special protective statute in the law reform of 1981, released the home to the former spouses and their children, which over time, has resulted in an endless source of judicial resolutions in which judges find themselves in explored territory. The judge must evaluate multiple circum- stances in each specific case as a consequence of the application of incomplete laws that settle only partially and in favor of certain subjects when it comes to personal belongings and financial situations from the marriage crisis. Assigning the use of the home gratuitously, in detriment to the only deed holder of said home, is compounded upon the arrival of the home user’s new partner. The flawed approach of the overestimated interest of the minor as the only criterion recognized in the Civil Code for assignation, leads to other prejudices in practice, which equally impact the owner. This is why an urgent and necessary reform on this matter is needed.