Can my spouse sell our house without my consent even though it is his property?
Although it is not a well-known rule, for those cases in which there is a civil marriage and the family home is the exclusive property of one of the spouses, you should know that For any act of disposition, the consent of both is required.even if one of them does not enjoy any property rights over the home.
Whatever the existing marriage, whether between people of the same or different sex. Our legislation wants safeguard and protect the home that constitutes the family home. For this reason, consent is required, indicated in the form of a reliable declaration of agreement or assent.
Economic matrimonial regime
The requirement of consent applies in all cases. Therefore, it is immaterial which of the two spouses is the owner or holder of the right to the home or the date on which it was acquired.
Ultimately, it is also indifferent what the economic regime of the marriage is, since it applies both to the cases of spouses married in Profit regime or other similar ones, such as when the regime was Separation of Property.
For sales only?
You should also know that the consent of both is not only applied in situations of sale of the family home, but also is required for any dispositive act about it.
The following are also understood as dispositive acts: the lease, the constitution of a right of use, habitation or usufruct, any donation, the formalization of any mortgage, the execution of a purchase option contract, the contracting of an exchange, the exercise of the division action, the contribution of the property to a legal entity…
In all these cases, the consent of both must be recorded.even if the owner is only one of them.
If it is not the family home?
Although in many cases the classification of the home as a family home is clear and unambiguous, given the current varied family models, doubts may arise regarding which home to consider as a family home, something that would affect the need for joint consent.
Today there are families that have several residences with alternative use and occupation during the year. In other families, one of the members of the couple spends long periods of time away from the family home, whether for work or other reasons.
There are also long-distance marital relationships, with homes that are kept separate. In these cases the most convenient solution is to consider family home the center of family relationships and social aspects of the marriage, with special attention, if any, to the place where the minor children usually reside.
How should consent be recorded?
The declaration of conformity or assent must appear in the formalization of dispositive act on family housing. It is sufficient that said assent be expressed in the notarial deed as general approval of its content.
If the act is formalized in a private, non-notary document, it must also be stated. It must be kept in mind that in order to access the Property Registry and register, it must be recorded in a notarized document.
What if you fail to comply?
If consent is lacking, it would mean the possibility of annul the dispositive act and that it is ineffective, unless the third party acquirer has acted in good faith. It could be annulled at the request of the spouse whose consent has been omitted or of his or her heirs.
If we imagine a sale of a family home without the consent of the non-owning spouse that is intended to be annulled, the third purchaser could validate the sale if he demonstrated that he was really unaware of the character or condition of the home as a family home.
If consent is not given?
For unlikely cases in which the non-owning spouse does not want to give consent for the operation on the home, as well as other more specific cases such as incapacity or impossibility, it is always possible to go to the request for judicial authorization.
If you are a de facto couple?
The general tendency is not to apply the obligation analyzed to de facto couples, although there are specific cases in which some court has expressly considered that the legal provision should be extended to this model of family organization.
Precisely, the spirit of the norm is to protect the family environment regardless of whether or not a civil marriage is celebrated. Thus, for example, in Catalonia its regional law does extend the need for the couple’s consent to the provision of the habitual residence.
*Juan Manuel Pérez de las Vacas is a lawyer.
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