If the two ex-spouses do not agree that the home that was their habitual residence is the one where the minor lives, and that they are the ones who come and go based on the shared custody regime, it is inappropriate to force them. This is established by the Civil Chamber of the Supreme Court, which indicates that in order to agree on a system of this type (“nest-house”) It is “essential to verify that there is a high level of understanding to plan the organization”, because if there is no understanding between the spouses, the system is a “potential source of conflict with a high probability of negative repercussions on minor children.”
The magistrates apply their jurisprudence to the specific case examined and annul the “nest-house” system that had been established despite the fact that Neither parent had requested it. For this reason, he partially estimates the father’s appeal and attributes exclusive use of the house to him since it is his property and his ex-wife has more income than him. With their decision, the magistrates annul only what was referred to this issue in the ruling of the Provincial Court of Madrid that also agreed on shared custody of the common child for weeks, a regime that is confirmed.
In the opinion of the Chamber, special attention must be paid to two factors: «firstly, the interest most in need of protection, which is none other than that which allows the periods of stay of the children with their two parents to be combined; Secondly, whether the home that constitutes the family home is the exclusive property of one of the spouses, of both, or belongs to a third party.
In this case The home is the exclusive property of the father, that he has a limited income (as stated in the first instance ruling, not modified by the appeal ruling, the father was temporarily working, covering a sick leave, with a monthly income of 1,551 euros); The mother has a higher income, sufficient to access a rental home (a monthly income, according to the payrolls provided, of 2,144 euros, and according to the 2019 personal income tax declaration, with a previous work income of 37,998 euros).
Housing for the father of the child
The Chamber also appreciates that no one requested this “nest-house” system and that there is no agreement on the alternation in the use of the home by the parents, although during the processing of the procedure they have continued to live there.
As a consequence, in light of these circumstances, the nest house model was ruled out, taking into consideration that the home is private to the appellant and that his ex-wife enjoys a higher income and is in a position to provide their common child with a home for the time they need. custody corresponds, the use of what was the family home is attributed to the appellant, of which he is also the owner.
All of this, the Court points out, regardless of whether his ex-wife can claim from him in the corresponding procedure the amounts that she says the ex-husband owes her for the improvements made to the property during the duration of the marriage.
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