Article 1793 of the Civil Code stipulates that the court may «…lease the family home to either spouse, at their request, whether the home is jointly owned or owned by one of them, taking into account, in particular, the needs of each spouse and the interests of the couple's children.»
Paragraph 3 of the same article provides that «The regime established, either by ratification of the spouses' agreement or by court decision, can be altered in accordance with the general terms of voluntary jurisdiction.»
The allocation of the family home is, therefore, an incident of voluntary jurisdiction, meaning that decisions made in this context can be altered based on subsequent circumstances that justify a modification, bearing in mind that, as stated in Article 987 of the Civil Procedure Code, «…the court is not bound by strict legality criteria, but must adopt the solution it considers most appropriate and timely in each case.»
In the same vein, it is important to consider the provision of Article 988 of the same Code, which points to the possibility of altering decisions already made, provided that such alterations are based on «…subsequent circumstances that justify the change.»
According to this Article 988, «…subsequent circumstances refer to those that occur after the decision, as well as those that existed earlier but were not raised due to ignorance or another significant reason.»
These subsequent circumstances must be relevant and tend to be permanent, rather than merely transient or of potentially short-lived nature.
Thus, after a decision is made determining that the right to use the family home will be granted to one of the spouses, that same decision can, in the future, be altered based on the circumstances mentioned above, with the important point being that the court, not being bound by strict legality criteria, can, in its decision, determine the solution it deems most appropriate and timely in light of the facts at the moment.
It is important to clarify that when requesting a change in the decision regarding the use of the family home, the aim is not to determine whether the previously made decision was correct or not, as the goal is for the court to issue a new decision based on circumstances that did not exist at the time of the earlier decision.
Whether in the decision to allocate the family home or in a decision modifying the previous one, the general rule to follow is that the right to use the home should be granted to the ex-spouse who needs it most. To this end, several factors should be considered, such as the financial situation of the ex-spouses, the interests of the couple’s children, the age and health condition of the ex-spouses, the location of the house, whether one of them has another home in which they can live, the professional situation of each of the ex-spouses, etc.
When, after considering all the above-mentioned factors – and others that may be relevant in the specific case – it is concluded that one ex-spouse's need to use the home is significantly higher than the other’s, the court should grant that person the right to lease the family home.
In summary, decisions regarding the allocation of the right to use the family home are not static, as the court can issue a different decision if subsequent facts and circumstances arise that necessitate adapting the decision to the new reality. This may result in the ex-spouse who previously had the right to use the home losing that right, and the other ex-spouse gaining that right in their legal sphere.
Therefore, it is crucial to clearly and objectively outline the new subsequent circumstances that support the request to modify the earlier decision, with the burden of proof resting on the party invoking those circumstances.
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