Use of the husband’s private family home in favor of the wife with adult children who live with the mother, one of whom suffers from a disability.

In the case examined by STS- 19-01-2017 (Rc.
1222/2015, ECLI:ES:TS:2017:113), the question arises, raised in a divorce trial, and relating to the attribution of the right of use of the family home, privative of the husband, in favor of the wife with adult children living with the mother, one of whom suffers from disability. The Chamber considers that the best interest of the minor, which inspires the measure of attribution of the family home, is not in any case comparable to the interest of the adult child with a disability for the purpose of granting him the same protection that is granted to the minor. And this is because the interest of the minor tends to their protection and assistance of all kinds, while that of the person with disabilities is aimed at the integration of their capacity to act through a system of support oriented to a special protection according to the degree of their disability. However, the Chamber points out that in very specific cases, the protection of the weakest or most vulnerable does not determine that limitations are imposed in all cases on the use of the family home in cases of matrimonial crisis, when there are other forms of protection, among which is the provision of maintenance that the law recognizes to the common children who are not independent, an obligation that corresponds jointly and equally to both parents, and that must be provided as provided by law once the time of use of the family home has elapsed. All this means, in the case under consideration, that once the three-year period, determined in the contested appellate judgment, has elapsed and the attribution of the use of the family home to the wife and daughter has ended, the housing and food needs of the daughter must be met, if she cannot meet them by herself, through the maintenance obligation of the parents, and will be determined according to the resources and means of the provider and the needs of the provider.


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