Vivienda familiar adquirida antes o constante la sociedad de gananciales: una revisión crítica de las previsiones del Código Civil

In cases of marital breakdown where there is a community property regime, one of the most tense procedures between the now ex-spouses is the liquidation of that regime; and for this, it is necessary to specify which of the assets existing in the marriage are separate and which are joint. Among these assets, one of the most important assets of the family and the marriage is precisely the family home. This paper critically analyses the existing legal criteria (together with their interpretation by doctrine and case law) for attributing the family home as separate or joint property, depending on whether it was acquired before or during the joint property regime, either free of charge or for consideration, but especially in the latter case. In particular, a highly critical analysis is made of the provision contained in the second paragraph of Article 1357 of the Civil Code, which establishes an exceptional regime for family homes purchased on instalment by one of the spouses before the commencement of the community property regime; a provision that, I believe, lacks sufficient justification and basis and which, nevertheless, creates greater uncertainty and insecurity, as well as other unnecessary effects and problems, with regard to a situation that, ultimately, at the time of the liquidation of the community property, may already be quite tense following the breakdown of the marriage. A critical analysis and review that is ultimately reflected in a proposal to remove this legal exception.