Family peace and calm are essential conditions for the smooth cohabitation of spouses, as well as for the psychological development and health of their children. Where these do not exist, then granting the use of the marital home to one of the two spouses is the best solution and aims to limit the adverse effects caused to the family by termination of cohabitation as much as possible.

However, it is common in these cases for both spouses to claim the use of the family home. Neither of the two wants to abandon the marital home for the benefit of the other, citing as an argument their contribution to its acquisition or even their financial inability to find housing elsewhere.

A temporary solution to this problem, until the property dispute between the spouses is regulated, can be provided by the Family Court within the framework of the powers granted to it by article 17(1) of Law 23/1990.

The provision of article 17(1) of Law 23/90

The relevant provision of article 17(1) of Law 23/90 provides, among other things, that, in the event of termination of cohabitation, the Family Court may, upon application by one of the spouses, and in view of the special circumstances of each and the interests of the children, grant the exclusive use of the family home to one spouse, regardless of which of them is the owner or has the right to use it.

The Court of Appeal, in its judgement issued in C.A. E39/2024, dated April 3, examined, on the one hand, the appeal of a husband against whom an interim order was issued to leave the family home, as well as an interim order prohibiting him from entering it, and on the other hand, the wife’s counter-appeal regarding the order for costs, since she was the successful party.

The Court of Appeal held that it was not disputed that since the parties were separated, the wife had the right to claim the exclusive use of the family home and therefore, there was a serious issue to be adjudicated.

It further held that the second condition of article 32 of Law 14/60 was also met and referred to the reasoning of the court of first instance that both the testimony of the wife and that of the husband indicated that their relationship was strained and their coexistence under the same roof problematic.

What was important was that the testimony of both undoubtedly indicated that their cohabitation was problematic and the second condition was met, which required the existence of a possibility that the wife be entitled to remedy during the adjudication of the initial application.

The Court of Appeal, with regard to the third condition that irreparable damage was caused, referred to case law, which considered the possibility of the court directly intervening with the issuing of an interim order in cases of family disputes that result in acts of violence or that affect the well-being of minors, with the conclusion that the damaged relationships and injured feelings of the parties and the minors are not valued in money and are not subsequently restored.

This was also the conclusion of the court of first instance, considering that due to the intense conflicts, serious consequences were created both for the parties themselves and for their children.

Conclusion of the Court of Appeal

The Court of Appeal agreed with the court of first instance that all three conditions of Article 32 of Law 14/60 were met and also added that its approach was correct and compatible with Article 17(1) of Law 23/90 and the case law.

One of the criteria set out in said article concerns the reasons for leniency and the best interests of the children. In the present case, it stressed that it was mutually accepted that an interim order was issued by which the wife was granted custody and care of the minors and the place of residence of the minors was determined as the place of residence of their mother.

This factor is in favour of the wife, in the sense that one of the two spouses, as the parent with whom the children reside, has a strong possibility of success. The reasons for leniency usually dictate the granting of the family home to the spouse with whom the children reside. For this reason, the Court of Appeal dismissed the appeal, however, considering that the first-instance decision regarding the costs was not correct, it awarded the costs in favour of the wife, as she was the successful party.