LA PROTECCIÓN DE LA VIVIENDA FAMILIAR DURANTE EL MATRIMONIO Y TRAS SU DISOLUCIÓN.

Abstract

In Spain the regular home has been the subject of regulation whose object it is to protect the existence of the regular home and family stability, in consonance with the measures taken in other European legislations. The case law of our country's courts, however, has extended the sphere of protection to limits that clash directly with basic principles of Spanish law. Under this perspective, an analysis is conducted to ascertain how the law regulates the family home, paying most particular attention to the consequences for the property registration system and, thus, the impact resulting from the registration of such circumstances. The author dwells especially on an analysis of the effects that foreclosing third parties feel when it is recorded, on the property's folio, that the property is a regular home, and the author concludes that the current article 144.5 of the Mortgage Regulation is regulated illegally. But it is when a matrimonial situation is dissolved that protection for the regular home comes into full force, and it is here where case law has reached absolutely unacceptable limits, violating principles and rules of Spanish legislation. The author feels that only the strict application of the principles of priority, third party enforcement and effective legal protection allows the protection stemming from legislation to be understood correctly. For that, there must first be an analysis of the true nature of the protection of the regular home in situations of conflict, to enable the concept to be incorporated fairly into the system without violating the system's ground principles. From this perspective, the author affirms that the protection stemming from the assignment of use implies both legal standing to possess and a court-set limitation on disposal, and the consequences of this affirmation are analysed. The study is complemented with a brief analysis of the consequences of the regular nature of a home in shared-living situations other than marriage while the situation is alive and after it has broken up.