The regulation on the disposition of property rights over the family home during the marriage

Abstract

The present study proposes a critical review of the Catalan Civil Code on the disposition of property rights over the family home, during the marriage, by the spouse who holds the title to such rights. Article 231-9 CCCat requires that said transactions are authorised by the spouse, even if the latter is not the title holder, and, failing that, by the court. The provision aims at protecting the interests of the spouse who does not own the asset as well as those of the family that resides in the dwelling. However, article 231-9 CCCat itself provides for the annulment of dispositions of the family home lacking said authorisations, but protects the purchaser in good faith for valuable consideration against the non-owner spouse, if the owner spouse declares, at the time of disposal, that the property is not the family home. This solution is not consistent with the purpose of protecting the family home that inspires article 231-9 CCCat. Moreover, it infringes the principle of nullity of acts contrary to mandatory norms, as well as the rules that govern the invalidity and the ineffectiveness of legal transactions. It is therefore proposed to replace the current solution by the unenforceability of the disposition of property against the non-owning spouse, if the spouse who holds title to the family home was not authorised by the latter or by the court.