Consecuencias de la convivencia de un tercero con el cónyuge custodio (y con los hijos menores del matrimonio) en la casa ganancial: la «desfamiliarización» de la viviendaComentario a la STS (Sala de lo Civil, Pleno) número 641/2018, de 20 de noviembre (RJ 2018, 5086)

Abstract

In the commented ruling the Spanish High Court confirms the judgment adopted by the Court of Appeal and hence declares that the right to use the family home, which was granted to the mother who lived in it with the underage children, should extinguish when the community of property’s liquidation took place. In order to justify such decision, the High Court considers that the house loses its family condition when the new partner of the spouse starts living in it due to the fact that it serves a different family. Even if the Court holds that such decision is not against the child’s interest nor challenges its own jurisprudence about art. 96 Civil Code, it also warns that such rule is not sufficient to decide most of the problems dealing with the use of the family residence. In our comment we will examine the jurisprudence regarding the consequences of the stable cohabitation of a new partner with the mother as well as the concept of family home, in order to find out which kind of interpretation has led the High Court to rule as it did and taking also into account the child’s interest.