A dear friend and fantastic lawyer, Juan Guerrero-Burgos, always reminds me of the phrase that his father-in-law, an illustrious Madrid notary and State lawyer, mentioned to him about “family law” and that he said: “When there is a family, there is no the law exists, and when the law applies, the family no longer exists.
A phrase that contains a great reality, because in the consultations that we receive in our office, we verify that the family unit is constant, legal transactions are carried out, which we understand, respond to that concept of family or marriage, but when the marriage is extinguished, they suppose real headaches, because the end of that legal business no longer responds to that reality.
Beginning with the choice of the matrimonial regime to follow, because there are many marriages that, even when they are in separation of property, function as if they were in a community property regime. And thus, both spouses contribute the same economic amount to cover the expenses of the marriage and children -the marital burdens-, even though their payrolls are different, one of the spouses earning double or triple that of the other.
The consequence is that, upon the termination of the marriage, the spouse with the lowest salary has not been able to save anything, while the other has been saving monthly, and may have at his disposal not inconsiderable financial amounts.
It is usual that the savings that one of the spouses has in their personal account, can be motivated as economic savings for the future education of the children, or that this money is used for trips or other leisure issues for the family. When the family is extinguished, at the time of divorce, and the law is applied, that money belongs to its owner, who denies that the object or purpose of those savings were for the family.
In a regime of separation of assets, expenses must be contributed in proportion to the income of each spouse, as established by the Civil Code, because otherwise, economic inequalities occur at the time of divorce, which are very difficult to remedy. And this without prejudice to knowing that it is difficult to address these issues when the family exists, because it is not thought or considered that there may be a separation, but things done well end well.
The issue becomes more complicated when we enter the scope of carrying out other types of common legal transactions between spouses, making donations or setting up mortgages. For example, a marriage in which the husband has acquired a property before the marriage with its corresponding mortgage, and they marry in separation of property.
Both spouses consider that by paying the family expenses jointly, the ownership of the house is also, and they decide to donate half of the ownership of the property to the woman. So far there is no problem, which arises when they forget about the mortgage, which continues to be owned by the husband, without subrogating the wife in the part that could correspond to her, although until the separation they continue to pay it jointly.
When the divorce occurs, we are faced with a house owned by both spouses, but that only the mortgage holder, one of them, must pay, which can generate a possible unjust enrichment for the favored spouse in relation to the other. The solution by agreement between the parties is simple, but when it is not possible, the legal landscape is really complicated.
Going to a court to exercise actions of this nature is not easy, being also long and expensive procedures, and with uncertain results, given the contradictory jurisprudence that exists. And oddly enough, issues of this type are common, like another case that is very illustrative of the judicial situation in which we can find ourselves.
This matter had its origin in a marriage under a separate property regime, in which the husband, sole owner of a home that constituted the family home -already paid in full- decides together with his wife, to constitute a mortgage on said home signed by both spouses, and with the money obtained, they buy a house on the beach.
In other words, they obtain the money through a mortgage loan with the guarantee of the private family home, owned by the husband, which they use to pay for the beach house, which is fully paid for. Well, at the time of the divorce, the Family Court, and regardless of the attribution of the use of the family home, imposes on the ex-husband the payment of the entire mortgage, on the understanding that it corresponds to him because he is the sole owner of housing – even though the Supreme Court has declared that this is a matter that would exceed the family process, and the payment must correspond to whoever is the owner. And therefore the ex-husband had to appeal.
During the processing of said appeal, the husband had to pay the mortgage in full, waiting for the appeal, which was also unfavorable. And the ex-wife, seeing that the apartment on the beach belonged to her 50 percent -without also having the obligation of the mortgage- took advantage of the existing judicial situation and requested the division of the apartment on the beach so that it could be sold at public auction. In this way, the ex-wife intended to receive the money from 50 percent of the apartment on the beach, and she had no obligation to pay the mortgage. And the ex-wife obtained a favorable sentence in the first instance.
And this is the situation we found when this matter came to the office, deciding to file an appeal, which was finally upheld by the Provincial Court of Madrid, declaring that the ex-wife also had the obligation to pay said mortgage, and that with the As a result of the public auction, the mortgage on the private property of the ex-husband will be canceled, because that was its origin. That is to say, several judicial processes with their corresponding appeals, and with a satisfactory ending in this case, because the Provincial Court of Madrid studied the matter well and issued the corresponding resolutions, yes, after years and numerous judicial expenses.
In conclusion, a bad legal deal that is constant in marriage can lead to innumerable legal proceedings. That is why, and even despite the existence of the family, we must also be aware of the law, and when the matrimonial economic regime is decided or it is decided to carry out legal transactions of purchase, sale, donations, etc., please, sit down and advise yourself. of all the consequences that may exist, because what is done badly has a very difficult solution.
Paloma Zabalgo is managing partner of the Paloma Zabalgo law firm.
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