Ús de l'habitatge per raó de la guarda dels fills menors i la introducció d'un tercer: revisió de la regulació catalana a propòsit de la sentència del Tribunal Suprem 641/2018, de 20 de novembre de 2018

Abstract

Catalan civil legislation lays down a discriminatory causality regarding the termination of the right to use on the family dwelling awarded after a procedure of marriage breakdown. The presence of a third party in a marital cohabitation with the spouse or former spouse awarded with the right of use only terminates that use if the right is awarded regarding the major necessity of the beneficiary and not, on the other hand, if the award has been done by reason of the minor children custody. The economic loss that suffers the owner or co-owner of the family dwelling that sees himself deprived of its use in favour of the spouse or ex-spouse that has the custody of the children has been indirectly compensated by the Catalan civil law. This compensation is dealt within the attribution of the value of that use in the payment of the duty of maintenance in favour of the children or the compensatory payment to the spouse or ex-spouse. Concerning the Judicial Decision of the Supreme Court 641/2018, November 20th, terminating the use in consideration of the third party presence that is marital cohabiting with the parent awarded with the use regarding child custody and with the argument that the family dwelling has come to serve to a different family circle than the one that justified the measure adoption, the article suggests if that solution could be pass to our legal system and, alternatively, what are the solutions that can be considered in front of that situation. Furthermore, a modification proposal regarding Catalan regulation is done, permitting a direct compensation for the deprivation of the use of the family dwelling to the owner or co-owner and that is directed to set apart the protection of the minor's best interests from their permanence in a specific dwelling.