Section 96 of the Spanish Civil Code, in its current wording given by Law 8/2021 of 2 June, provides that ‘in the absence of an agreement of the spouses approved by the judicial authority, the use of the family home and of the objects of ordinary use of it shall correspond to the common minor children and to the spouse in whose company they remain, until all of them reach the legal age’. So, the legislator places a time limit on that particular right of use of the family home which is a consequence of the attribution of custody of the children, and whose prolongation beyond the legal age of the children had been a source of conflict in practice, giving rise to situations that were often unfair for the non-custodial parent.

What happens if there are no children? The same section provides for the possibility of assigning the use of the family home to the spouse whose interests are most in need of protection, for a period of time that is prudentially established. That is to say, always with a time limit, since, as case law holds, granting the use of the home to one of the spouses without such a limit would be the same as carrying out an unjust expropriation, and would become a disproportionate burden for the other spouse.

And what is this prudential limit to be set? Ruling 808/2024 of 10 June, of the First Chamber of the Spanish Supreme Court, has established it as one year from the divorce. In the specific case in question, the Court considers the plaintiff wife to be the holder of the interest most in need of protection, as the husband admits to having another property to satisfy his housing needs; and consequently, the wife is granted the use of the family home, for a period of one year; “a period which is also considered sufficient for the litigants to proceed, if necessary, to obtain the economic returns from the property, either by means of its sale or by renting it, while at the same time they can seek ways of satisfying their housing needs.”

The solution adopted by the Supreme Court is the right one, as it balances the needs of both parties and avoids a situation of indefinite appropriation of the family home.