EL PAGO DEL PRÉSTAMO HIPOTECARIO QUE GRAVA LA VIVIENDA FAMILIAR. A PROPÓSITO DE LAS SENTENCIAS DEL TRIBUNAL SUPREMO, SALA PRIMERA, DE 28 DE MARZO DE 2011 Y DE 26 DE NOVIEMBRE DE 2012.

Abstract

The juridical controversy establishes on determining if the payment of the quotas of the mortgage lending that burdens the familiar housing constitutes a load of the marriage, joined the food notion, and, therefore, submitted to the regime of contribution of that one, or, we are before a debt of the company of joint property (article 1362.2 of the Civil Code). The judgment of the Supreme Court, of March 28, 2011 he chooses for this second option in headquarters of company of joint property, so much constant marriage as for the situations of conjugal crisis; so that, the relations with the mortgage creditor are not ruled only by the economic matrimonial regime, but for the procedure that discipline the private contracting attending to the title of constitution of the mortgage lending. For your part, in this line, the judgments of the same Court of November 26, 2012, for the regime of separation of goods, think that there stay out of the concept of loads of the marriage (article 1438 of the Civil Code) those expenses that take the acquisition of capital goods as an object though they are destined to familiar housing, and, in consequence, if such good has been acquired by a spouse, the debt that stems from such an acquisition it is assumed only by this one; whereas, if, such a acquisition is joint, the property will be in pro undividedly ordinarily; so that, both are holders of the debt, and, for his payment one has to attend to the quota established in the co-ownership.