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.
Husband who makes contributions to a pension plan during his marriage subject to the community property regime: The wife has the right to claim the contributions made during the term of the marriage for the common partnership, notwithstanding the privative nature of the fund itself.
Based on art. 1,361 CC, which presumes that all the assets existing in the marriage have a community property character until proven otherwise, the Civil Chamber of the Supreme Court, in its judgment no. 618/2022, dated September 21, 2022, resolved in cassation, recognizing the origin of an asset item consisting of a credit in favor of the community property and against the husband, for the amounts contributed to his pension plan during the validity of the community property regime.
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