CUSTODIA COMPARTIDA Y EL DERECHO DE USO DE LA VIVIENDA FAMILIAR. ANÁLISIS JURISPRUDENCIAL.

Abstract

The 2005 Civil Code reform introduces shared custody but fails to state expressly how use of the home and household goods is to be assigned. Article 96.2 of the Civil Code provides a good rule of thumb: «The court will decide accordingly » on the use of the family home. Since there is wide scope for free will, the parents may schedule use of the family home to offset maintenance and extraordinary expenses, thus making for a fairer distribution of economic burdens and avoiding the trouble caused by failure to pay maintenance promptly. Judicial decisions vary in how they assign use of the family home. Either they give use of the family home directly to the child and whichever parent temporarily holds custody of the child (in alternating succession), or they give it to the parent who owns the home or to the needier parent (in order to guarantee the child's right to shelter). Temporary agreements can always be made (subject to a maximum limit), until the time comes to liquidate the marital partnership.