Around 100,000 Spanish couples divorce or separate each year. Many of these citizens find in the judgment or the distribution of the house one of the biggest conflicts for the agreement: is the house still for who has custody of the minors? What happens if we leave the house? Change the lock ?, Who pays the mortgage? …
LThere are many doubts to be resolved, and “being informed of procedures and real rights” is the first piece of advice offered by María Eugenia Cruz, director of the family department of the Barcelona law firm. The second, “let yourself be advised”.
Basic measures that would have been of great help to the 95,320 couples who, according to the statistics of nullities, separations and divorces of the INE, did so in 2019, 4.2% less than a year earlier. The lawyer Cruz clarifies the most common and important doubts.
Does the house still belong to the custodian of the minors?
44.8% of broken couples had only minor children. The Civil Code establishes that “having custody of children or being the member of the couple the most to protect, are guiding principles or applicable by the courts in the absence of agreement between the parties”, explains Cruz.
Therefore, having custody of the children is a preferred option, but “you also have to think about what it means to have use of the home”. The beneficiary of the use must face the costs of maintenance of the accommodation and of the part which corresponds to it according to the ownership of the mortgage, the payment of the down payments: “As much the allocation of use is preferred to a, that no, we will consider part of the expenses apart from child support ”.
Likewise, in the case of a guardianship shared between the two parents without a housing agreement, “the use of the marital home must be attributed to one of the two parents who is most in need of protection, for example. the one with the least income.
In both cases, the most common is that this allocation of the household is made until the age of the majority of the children – 18 – although it can be agreed until the economic independence of the children.
How do you proceed when the couple has no dependent children or minors?
As explained, if there is no agreement on the use of the family home, it is common for the home to be allocated to those most in need of protection. In the event that neither of the spouses can assert the necessity, “the general rule would be not to attribute the use to one or the other of the spouses”.
What are the most common solutions for paying the mortgage?
To begin with, it should be remembered that the obligation to pay the mortgage is determined by the title constituting the mortgage. In practice, this implies that “whoever the owner of the house is, in the absence of agreement between the spouses, the payment obligation is contracted by the one who signs the mortgage with the bank”.
For the majority of cases where the two spouses are co-owners of the mortgage, Cruz lists “some possibilities of agreement at the time of the divorce”:
Rental or sale to a third party.
Continue to pay the mortgage in the proportion stated in the deed for a period of time and the subsequent sale of the property.
Agreement of subrogation in the obligation of payment by the spouse who retains the use of the house. This implies a final solution between the parties, because if there is no change in ownership of the mortgage, the bank is not bound by the agreement that the parties may have concluded: in case of non- payment of one of them, the other owner will be claimed.
Dissolution of co-ownership. Cruz points out that the transfer (normally the sale) of the property to one of the two also has advantages when it is carried out at the time of the divorce, and explains: “There is no increase in assets, therefore the ‘ITP is not paid. on patrimonial transmissions]and it is not necessary to modify the act at the notary’s office either because it is directly entered in the register of the divorce act itself.
How is the distribution done after the house has been sold?
After having liquidated the charges that could weigh on the house (for example the mortgage), the most common is that the distribution is proportional to the percentage that appears in the deed.
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