Failing an agreement between the spouses the court must resolve who is attributed the use of the family home, settling down in the legislation, the preference of the children and the parent who is attributed the custody of the children, or that spouse whose interest is most worthy of protection. And this attribution of use of the family home can be done regardless of who is the owner of that property, whether deprivation of a spouse, both independently and the matrimonial regime.

However, the legislation is silent on the nature of that right, ie a situation in which one of the cohabitants of the same address is preferred to another for reasons that the law considers protectable and regardless of title holds the owner of the house (lease, proprietary ownership).

To determine its nature, we have to analyze various judgments, and we see that there is a common ground or on which there is consensus, namely:

1. There are decisions that determine the use of the home to one of the spouses is a right to occupy temporarily and provisionally in accordance with Article 91 of the Civil Code, and therefore effective against third parties. (Supreme Court Judgment April 4, 1997).
2. Others consider it a right royal family total efficiency (Supreme Court Judgment 18 October 2014).
3. Other sentences contemplating lacking real right character, at least in common law, understanding that the Catalan law configures itself with a real right to declare registrable in the Land Registry (Supreme Court Judgment 26 October 2015).
4. Other sentences include the possibility of establishing a right of use by the landlord or even by Justice (Judgment of the Supreme Court of April 29, 1994) itself.
   In its fiscal impact, the Directorate General of Taxes considers that the attribution of the use of the marital home if there are minor children, born on legal grounds and not because it really is a real right, therefore it is not subject to Transfer Tax and Stamp Duty or TPO, or ISD, in relation to Income Tax for Individuals understand that the allocation of use does not lead to the imputation of income from real estate or the owner of the house or the holder of use, since which it is intended for use residence (other question is how appropriate to that complaint in the case of marital or separate property).

Based on the above, let’s analyze what happens in the case of provision of the use of the family home, on the assumption that the separation occurs by matrimonial crises or stable partner.

As I mentioned earlier, the allocation of the use of the family home occurs regardless of the economic system, but we must say that the Court has addressed this issue without unity of criteria, since some statements can not be assessed understand that equality between de facto union and marriage, others are oriented in the sense of appreciating equality between marriage and de facto unions.

Personally, I think that to resolve this issue and since no branch of law is “watertight compartment”, a possible solution would be to integrate the tax treatment with the Civil Code and other provincial rights, in particular, if we start from the basis that level tax it is understood that the allocation of use is not a real right (no matter if we talk about an alleged marriage crisis or steady partner), end at which I totally agree for several reasons:

1. If the attribution of the use of the family home is leased, you can not be a real right over it, being a good party external to matrimonial proceedings or marital cohabitee.
   It can not be configured as a property right by the fact that the Catalan regional regulations allow enrolling use in the Land Registry, since the reason that such use is not subject to taxation is that the gradual share of stamp duty are legal documents and in this case we have a court decision and not a public document.
2. Therefore, not be the taxable event of the different taxes mentioned in matrimonial proceedings and regulation of relations paternal subsidiaries, the attribution of the use of the house, should not be seen as a matter of application of the standard analogue as indicated statements that appreciate equality, but we should appreciate equality between marriage and de facto union for all purposes as equivalent realities and consequences. Not being so, the allocation of housing using a real right, but a right of temporary occupation and provisional, enforceable against third character, in my opinion.

Sara Benjelali González

Lawyer