As already recognised by the revolutionary STS 641/2018 of 20 November, the First Section of the Civil Chamber of the Supreme Court in its recent STS 488/2020 of 23 September, once again agreed to the extinction of the use of the family home attributed to the custodial spouse and their children, as a result of the new couple living together in the same house.
In this case, the plaintiff claims that there has been a substantial change in circumstances at the time the measures relating to the use of the family home were adopted. Specifically, it is invoked in respect of the measure attributing the right to use the family home - which, in a divorce judgment of January 2011, was attributed to the mother and the three minor children, of whom only one is currently a minor - the supervening circumstance of the defendant having married her new partner, and living together in the family home, for which reason it urges the extinction of that use, principally.
First Instance
The lawsuit is dismissed. The judge considers that the alleged circumstance of the cohabitation of the custodial parent with her new husband, in the family home - which is accredited - could never serve as a basis for extinguishing the right of use attributed by a divorce sentence to the wife and daughter, since according to art. 96 CC, the use is attributed to the parent who has custody of the child. It therefore considers that such cohabitation does not constitute a basis for extinguishing the right of use, in accordance with Articles 90, 91 and 96 CC, which is in the best interests of the child. At second instance the appeal is dismissed, but the Supreme Court upholds the appeal. Read more
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