Family housing and bankruptcy proceedings after Law 16/2022, of September 5

Abstract

The habitual residence is a seizable asset that is for this reason incorporated into the assets of the bankruptcy when it is the property of the bankrupt or when, being conjugal or common, it must be liable for the obligations of the bankrupt. However, the spouse of the bankrupt may prevent the execution of habitual residence by requesting the dissolution of the community of property and its liquidation. The spouse of the bankrupt will have the right to have the habitual residence of the couple included in their credit, whether conjugal or common, to the extent possible. If it exceeds the amount of the credit, the award will only proceed if the spouse pays the excess in cash. On the other hand, article 194 TRLC establishes acquisition rights for the spouse of the bankrupt, stating that he or she will have the right to acquire all of each of the marital or common assets included in the active estate, paying half of its value to the estate. This is a right different from the right to request the dissolution of the community of property and which can operate on property of which the spouse of the bankrupt is a co-owner in a Roman community, whether or not it consists of habitual residence. If any of these rescue options are not exercised, the habitual residence will be sold, either in agreement or in collective liquidation, with the possibility that through a bankruptcy agreement that provides for reduction of credits or waits, it can be maintained in the assets. of the bankrupt. If the bankrupt natural person requests the exoneration of the unsatisfied liability through the application of a payment plan, the law expressly provides that the payment plan may be extended for five years when it does not provide for the sale of the family home to pay the debts. By this means of resolving the bankruptcy, different from the bankruptcy agreement and the collective liquidation, the rescue of the habitual residence can also be achieved.