The award of the right to use the family home is one of the most significant financial decisions in the divorce process, especially where high-value properties are involved or where the spouses\u2019 assets include multiple homes. The decision on who remains in the family home, for how long, and under what financial conditions has implications both for the day-to-day lives of those affected and for the overall division of assets. <\/p>\n\n
In Catalonia, the applicable rules have specific features that must be understood in order to properly protect each spouse\u2019s interests. Article 233-20 of the Civil Code of Catalonia governs the award of the right to use the family home, setting out criteria the judge must follow when there is no agreement between the parties. <\/p>\n\n
This article analyses the key aspects of awarding the family home in high-net-worth divorces, including the legal criteria, alternatives to a straightforward award, tax implications, and the specific issues that arise when the marriage owns multiple properties.<\/p>\n\n
The family home is the property where the spouses have lived together as their usual residence and, where applicable, where the children live. The award of its use after divorce follows specific criteria set out in Catalan law. <\/p>\n\n
When there are minor or dependent children<\/strong>, the family home is preferably awarded to the parent who has been granted the children\u2019s care and custody, or directly to the children if both parents have shared custody but one of them must leave the home. The aim is to preserve the children\u2019s usual environment, minimising the impact of the divorce on their day-to-day lives. <\/p>\n\n However, this preference is not absolute<\/strong>. Article 233-20.3 of the Civil Code of Catalonia allows, exceptionally, for the home to be awarded to the spouse who does not have custody if there are circumstances that justify it (for example, if the custodial parent has another suitable home or if there are domestic violence reasons that make remaining in that home inadvisable). <\/p>\n\n When there are no minor or dependent children<\/strong>, the award of the home follows different criteria. The judge must assess: <\/p>\n\n The interest most in need of protection.<\/strong> Which spouse has the greater need to remain in the home, considering factors such as age, health status, financial situation, and the ability to access another home.<\/p>\n\n Ownership of the property.<\/strong> If the home is the exclusive property of one spouse, this factor carries significant weight, although it is not decisive. The non-owner spouse may be entitled to temporary use if their situation justifies it, but this right will not be indefinite. <\/p>\n\n Contribution to the purchase.<\/strong> Particularly relevant when the home was acquired during the marriage. If one spouse contributed significantly to the purchase or improvement of the property, even if they are not listed as the formal owner, this may be taken into account when determining use. <\/p>\n\n The spouses\u2019 conduct during the proceedings.<\/strong> In cases of procedural bad faith or obstructive conduct, the judge may take this into account unfavourably when awarding use.<\/p>\n\n In high-net-worth divorces, where the family home is often of high value, the award of use has significant financial implications. The spouse who remains in the home receives a benefit in kind (rent savings or the opportunity cost of not being able to sell or rent the property), which must be considered as part of the overall division of assets. <\/p>\n\n When there are no minor or dependent children, awarding the family home is particularly complex in high-value estates, as the guiding criterion of the child\u2019s best interests does not apply.<\/p>\n\n Catalan case law<\/strong> has established that in these cases, if the home is marital property or held in co-ownership, neither spouse has an automatic preferential right. The judge must balance interests, considering: <\/p>\n\n Comparative financial situation.<\/strong> If one spouse lacks the resources to access another home while the other has sufficient assets, a temporary award to the more needy spouse may be justified.<\/p>\n\n Age and health.<\/strong> An older spouse or one with health problems who has lived in the home for many years may have preference over a younger spouse with a greater ability to adapt.<\/p>\n\n Roots and ties to the area.<\/strong> If one spouse carries out professional activity from the home or has strong social and family ties in the neighbourhood, these factors may be relevant.<\/p>\n\n Objective ability to access another home.<\/strong> Not only in terms of financial capacity, but also the availability of suitable homes on the market, especially in areas with a tight housing market.<\/p>\n\n In practice, in divorces without children where both spouses have similar financial capacity and the home is marital property, the most common solution is to sell<\/strong> the property and split the price between them. However, when one spouse wishes to keep the home, it may be agreed that it is awarded to that spouse, with financial compensation to the other for their half (by cash payment, offsetting against other assets, or assuming debts). <\/p>\n\n A key issue in high-net-worth divorces is the financial compensation<\/strong> that must be paid by the spouse who enjoys exclusive use of the family home when it is marital property or owned by the other spouse.<\/p>\n\n Case law has established that the exclusive use of an asset that belongs to both spouses (or only to the other) results in unjust enrichment<\/strong> if it is not compensated. The spouse using the home is saving rent and, at the same time, preventing the other spouse from making use of their share of the property (whether to sell it, rent it out, or use it personally). <\/p>\n\n Calculation of compensation:<\/strong><\/p>\n\n Although the law does not set a fixed criterion, judicial practice usually calculates compensation based on the market rental value<\/strong> of a similar home. If the family home could be rented for \u20ac2,000 per month, the spouse who uses it exclusively may be required to pay the other a monthly amount equivalent to their proportional share (if the home is marital property, \u20ac1,000 per month; if it is the exclusive property of the other, \u20ac2,000 per month). <\/p>\n\n In some cases, especially where the award is justified by protecting the spouse most in need, the judge may set compensation below the market rental value, or even waive it if the beneficiary\u2019s financial situation does not allow them to afford it.<\/p>\n\n Duration of compensation:<\/strong><\/p>\n\n Compensation remains payable for as long as the award of use remains in force. If the award is temporary (for example, until the children reach the age of majority), compensation will cease when the use ends. If it is indefinite, compensation will also be indefinite, unless it is later modified by the court. <\/p>\n\n In high-net-worth divorces, the accumulation of compensation over years can amount to very significant sums. For example, if compensation of \u20ac1,500 per month is set for 10 years, the spouse using the home will have transferred \u20ac180,000 to the other. This should be taken into account in the overall negotiation of the regulatory agreement and in each party\u2019s asset strategy. <\/p>\n\n Selling the family home is a common alternative in high-net-worth divorces, especially when there are no minor children or when the home has a very high value that makes awarding it to just one spouse difficult.<\/p>\n\n Situations in which a sale is often agreed:<\/strong><\/p>\n\n Both spouses have financial capacity.<\/strong> If both can access another suitable home, selling the family home and splitting the price allows the assets to be settled cleanly without creating future ties.<\/p>\n\n Inability to compensate.<\/strong> If the home is awarded to one spouse but they cannot financially compensate the other for their half (either by cash payment or with other assets), it may be necessary to sell it.<\/p>\n\n High value of the property.<\/strong> In estates with very valuable homes, awarding the home to one spouse can significantly unbalance the overall division of assets. A sale allows for a more equitable distribution. <\/p>\n\n High mortgage.<\/strong> If the home is subject to a substantial mortgage and both spouses are borrowers, keeping the home for one spouse\u2019s use means the other remains liable for the debt without any benefit. Selling the home and cancelling the mortgage avoids this problem. <\/p>\n\n Procedure for the sale:<\/strong><\/p>\n\n The sale may be agreed in the regulatory agreement (mutual-consent divorce) or ordered by the court (contested divorce). The matters that should be regulated include: <\/p>\n\n Timeframe for the sale.<\/strong> Should the home be sold immediately, or can a timeframe be set? Where there are minor children, it may be agreed that the sale is postponed until they reach a certain age, while use is awarded in the meantime to the custodial parent. <\/p>\n\n Minimum sale price.<\/strong> To avoid selling at an undervalue, a minimum price may be set based on a professional valuation.<\/p>\n\n Allocation of costs until the sale.<\/strong> Who covers the mortgage, IBI, community fees, and property maintenance costs while it is on the market.<\/p>\n\n Estate agency.<\/strong> Multiple agencies may be appointed simultaneously, a single trusted agency, or the spouses may even sell directly themselves.<\/p>\n\n Use during the sale period.<\/strong> Whether the home remains empty to facilitate viewings by potential buyers, or whether one spouse continues using it with an obligation to allow viewings.<\/p>\n\n Distribution of the sale price.<\/strong> Normally, 50% to each spouse if the home is marital property. If there are debts or one spouse made improvements using separate assets, the split may be adjusted. <\/p>\n\n The sale of the home in the context of divorce is exempt from the Municipal Tax on the Increase in Value of Urban Land (plusval\u00eda municipal) when it takes place within two years of the divorce and in compliance with the regulatory agreement or judgment. However, it may generate a capital gain subject to IRPF if the sale value exceeds the acquisition value, with the usual exemptions for reinvestment in a main residence applying if the legal requirements are met. <\/p>\n\n In high-net-worth divorces it is common for spouses to own, in addition to the main residence, second homes, investment apartments, or properties abroad. This adds complexity to the division of assets. <\/p>\n\n Award of the main residence plus second homes:<\/strong><\/p>\n\n The principle of awarding the family home applies exclusively to the main residence, i.e., the property where the spouses and, where applicable, the children have carried out their day-to-day life. Second homes (summer houses, mountain apartments) are not governed by the rules on awarding use, but instead follow the general rules for winding up the matrimonial property regime. <\/p>\n\n This means that, if the marriage is under a community property regime, second homes acquired during the marriage are marital property and must be split 50\/50. If the regime is separation of property, each spouse keeps the homes they own. <\/p>\n\n However, in negotiating the regulatory agreement, second homes can be used strategically:<\/p>\n\n Compensation for the main residence.<\/strong> If one spouse keeps the main residence (of high value), the other may keep the second home as partial compensation.<\/p>\n\n Temporary use of second homes.<\/strong> It may be agreed that the spouse who does not obtain use of the main residence has the right to use the second home during certain periods, especially if it has sentimental value (a family-inherited home, the children\u2019s usual holiday place).<\/p>\n\n Selective sale.<\/strong> Selling some properties and keeping others, depending on each spouse\u2019s preferences and tax considerations.<\/p>\n\n Tax strategies:<\/strong><\/p>\n\n The division of estates with multiple properties must be planned from a tax perspective:<\/p>\n\n Avoid unnecessary transfers.<\/strong> Each transfer of property may trigger taxes (Property Transfer Tax, plusval\u00eda municipal, capital gains in IRPF). It is preferable to structure the division so that each spouse is directly awarded the properties that correspond to them, without intermediate transfers. <\/p>\n\n Make use of exemptions.<\/strong> The transfer of the main residence in the context of winding up community property or separation of property may benefit from tax exemptions if structured correctly.<\/p>\n\n Defer gains.<\/strong> If the sale of properties generates capital gains, the timing of the sale can be planned to spread the tax burden over several tax years or to take advantage of reinvestment relief.<\/p>\n\n The right to use the family home awarded in the divorce is not necessarily permanent. It may end for various reasons provided by law or agreed by the parties. <\/p>\n\n Grounds for termination provided by law:<\/strong><\/p>\n\n Marital cohabitation with another person (new partner).<\/strong> Article 233-20.4 of the Civil Code of Catalonia provides that the right of use ends if the beneficiary begins a stable marital-type cohabitation with another person. Case law has interpreted that this cohabitation must be stable and analogous to marriage; sporadic relationships or dating without actual cohabitation are not sufficient. <\/p>\n\n End of the need that justified the award.<\/strong> If the award was based on the need to protect the more disadvantaged spouse (for example, lack of financial resources), and that spouse later significantly improves their financial situation, termination of the right may be sought through the courts.<\/p>\n\n Children reaching the age of majority.<\/strong> Where the award was based on custody of minor children, termination usually occurs when they reach the age of majority or their financial dependence ends. However, it is not automatic; if adult children continue to live with the parent and remain financially dependent (for example, while studying), the right may be extended. <\/p>\n\n Grounds agreed in the regulatory agreement:<\/strong><\/p>\n\n Spouses may agree specific grounds for termination of the right of use:<\/p>\n\n Fixed term.<\/strong> Providing that use ends on a specific date (for example, 5 years after the divorce).<\/p>\n\n Specific conditions.<\/strong> Sale of the home, the beneficiary\u2019s work relocation to another city, completion of the children\u2019s studies, the beneficiary\u2019s retirement\u2026<\/p>\n\n No effective use.<\/strong> If the beneficiary stops using the home as their usual residence (moving to another home, renting it to third parties without authorisation), automatic termination may be agreed.<\/p>\n\n Procedure for termination:<\/strong><\/p>\n\n If termination operates due to grounds provided in the agreement (time limits, conditions), it is automatic and it is sufficient to notify the other spouse that they must vacate the home.<\/p>\n\n If termination is based on supervening grounds (new partner, change of circumstances), the spouse seeking to recover use must go to court and prove that the terminating ground applies. The mere passage of time does not, by itself, terminate the right of use unless a specific term was agreed. <\/p>\n\n In high-net-worth divorces, where the home may be of very high value, it is essential that the regulatory agreement sets out precisely the grounds and time limits for termination of the right of use, avoiding open-ended situations that lead to future litigation.<\/p>\n\n The award of use of the family home has tax implications that should be considered both at the time of divorce and during the period the right of use remains in force.<\/p>\n\n Personal Income Tax (IRPF):<\/strong><\/p>\n\n For the non-owner user:<\/strong> If a spouse is granted the right to use a home they do not own, they are receiving a benefit in kind (rent savings). However, where this right derives from a court decision or a regulatory agreement approved by the court, Supreme Court case law has established that it is not treated as employment income or a capital gain, so the user is not taxed on this benefit. <\/p>\n\n For the owner who does not use it:<\/strong> The owner spouse who is deprived of use of the home because it is awarded to the other cannot deduct imputed rental income in their IRPF, as the home is not made available voluntarily but by legal imposition. Nor can they deduct home expenses (IBI, community fees) unless the agreement expressly provides that they must bear them. <\/p>\n\n Wealth Tax:<\/strong><\/p>\n\n The home continues to be included in the registered owner\u2019s wealth, not the user\u2019s. If the home is marital property, it is included at 50% in each spouse\u2019s wealth, regardless of who uses it. <\/p>\n\n Real Estate Tax (IBI):<\/strong><\/p>\n\n The obligation to pay IBI lies with the registered owner of the home, unless the regulatory agreement provides otherwise. It is common to agree that the user will pay IBI as consideration for use. <\/p>\n\n Property Transfer Tax:<\/strong><\/p>\n\n The mere award of use does not transfer ownership, so it is not subject to this tax. Only if a definitive transfer of ownership later occurs (award in payment, sale and purchase) will the tax be triggered. <\/p>\n\n Plusval\u00eda municipal:<\/strong><\/p>\n\n Termination of the right of use also does not generate plusval\u00eda municipal, as there is no transfer of ownership.<\/p>\n\n Who decides whether I stay in the home after the divorce?<\/strong><\/p>\n\n If the spouses reach an agreement, it is set out in the regulatory agreement. If there is no agreement, the judge decides by applying the legal criteria (best interests of minor children, spouses\u2019 financial situation, ownership of the property). <\/p>\n\n Can I stay in the home if it is the exclusive property of my ex-spouse?<\/strong><\/p>\n\n Yes, temporarily. The judge may award use to a spouse even if the property is owned by the other, especially if there are minor children or if your financial situation justifies it. However, this right is usually temporary and may end when the reasons that justified it cease. <\/p>\n\n Do I have to pay anything to use the home if it is marital property?<\/strong><\/p>\n\n It depends on what the agreement or the judgment provides. It is common for you to have to pay compensation to the other spouse equivalent to the market rental value of their half, or to assume all expenses (mortgage, IBI, community fees) as consideration. <\/p>\n\n How long can I remain in the family home?<\/strong><\/p>\n\n It depends on the circumstances. If there are minor children, generally until they reach the age of majority or become independent. If there are no children, it may be for a fixed term or until your situation changes (new partner, financial improvement). The agreement may set specific time limits. <\/p>\n\n What happens if I start a relationship with someone else?<\/strong><\/p>\n\n If you live stably with a new partner, the right of use ends automatically under Catalan law. Occasional relationships or dating without actual cohabitation do not end the right, but you should bear in mind that your ex-spouse may apply to the court if they can prove stable marital-type cohabitation. <\/p>\n\n Can I sell the home if I have the right of use but I am not the owner?<\/strong><\/p>\n\n No. The right of use does not include the power to sell, mortgage or rent out the home. Only the owner can do so, although if the home is sold, your rights as a user prevail against the buyer if they were registered in the Land Registry. <\/p>\n\n Do you need legal advice on this matter?<\/strong> At ACL Boutique Legal, we offer a personalised analysis of your situation and a legal response tailored to your case.<\/p>\n\n You can contact us by email at info@aclboutiquelegal.com<\/strong>, or by phone on 931 820 179<\/strong> or 671 377 204<\/strong> (WhatsApp).<\/p>\n\n Our offices are at Carrer del Tenor Vi\u00f1as, 4\u20136, 3\u00ba\u20132\u00aa, Sant Gervasi\u2013Tur\u00f3 Parc, 08021 Barcelona<\/strong>, and we also offer appointments by prior arrangement in Sabadell<\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":" The award of the right to use the family home is one of the most significant financial decisions in the…<\/p>\n","protected":false},"author":11,"featured_media":54761,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_joinchat":[],"footnotes":""},"categories":[1],"tags":[],"class_list":["post-54762","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-sin-categoria"],"yoast_head":"\nDivorce without children: specific issues in awarding use<\/strong><\/h2>\n\n
Financial compensation for use of the home<\/strong><\/h2>\n\n
Sale of the family home: when it applies and how to manage it<\/strong><\/h2>\n\n
Estates with multiple homes: award and strategies<\/strong><\/h2>\n\n
Termination of the right of use: grounds and time limits<\/strong><\/h2>\n\n
Tax aspects of awarding use<\/strong><\/h2>\n\n
Frequently asked questions about use of the family home<\/strong><\/h2>\n\n
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