Who keeps the family home after a divorce in Spain: use, mortgage and what changes when a new partner moves in

The flat in Corralejo is in both names. The mortgage has fourteen years to run, the children are nine and twelve, and one of the parents has already taken a studio in Puerto del Rosario. At the first meeting the question arrives in the same words almost every time: who gets the house? Spanish law does not answer it, because it never asks it. It asks three separate questions: who owns the home, who may live in it, and who pays the loan. A divorce judgment decides the second. It leaves the first where the title deed put it and the third where the loan deed put it. This guide takes the three in turn, with article 96 of the Civil Code in the wording in force since 3 September 2021 and the Supreme Court rulings that fill its gaps, the most recent of them from the spring of 2026. Quotations are in Spanish with the reading in English.

The use: a right to live there, not a share of the house

The Code speaks of the «use» of the family home, and the Supreme Court has said what kind of right that is. In its plenary ruling 859/2009, of 14 January 2010, it held that the use granted in a matrimonial judgment no es un derecho real, sino un derecho de carácter familiar — is not a right in rem but a right of a family nature. It lets a person live in the home. It moves nothing in the ownership: the spouse who leaves is as much an owner as before, and a flat bought in halves is still held in halves on the day the use ends.

The family home is the one in which the parents and the children lived until the breakdown; a second home or the premises of a business cannot be awarded under this rule. The question is decided twice, first as a provisional measure when the proceedings begin (article 103) and then in the judgment, and both times the answer depends above all on the children.

The family	Who has the use	For how long
Children under eighteen who live with one parent	The children and that parent	Until the youngest comes of age
A child with a disability that makes staying advisable	The children and that parent	The term the court sets beyond the coming of age
Shared custody	The parent the court chooses, by need and by ownership	A fixed term: one, two or three years in most rulings
No children, or only adult children	The spouse most in need of protection, if the court so decides	A term fixed with prudence, never indefinite
The home was lent by a third party	Nobody under article 96	The owner can claim it back

With children under eighteen: the home follows the children

The rule is the first sentence of article 96: En defecto de acuerdo de los cónyuges aprobado por la autoridad judicial, el uso de la vivienda familiar y de los objetos de uso ordinario de ella corresponderá a los hijos comunes menores de edad y al cónyuge en cuya compañía queden, hasta que todos aquellos alcancen la mayoría de edad — failing an agreement between the spouses approved by the court, the use of the family home and of the objects in ordinary use in it belongs to the common minor children and to the spouse in whose company they remain, until all of them come of age. Three things are packed into that sentence.

• The agreement comes first. The spouses may settle the home differently in their divorce agreement: a sale and a split of the price, a buy-out, a date. The court approves what they agree salvo si son dañosos para los hijos o gravemente perjudiciales para uno de los cónyuges — unless it is harmful to the children or seriously detrimental to one of the spouses (article 90.2).
• The use follows the children, not the title. Without an agreement the home goes with custody, even when it belongs entirely to the parent who leaves. And while the children are minors the court cannot cut it short, apart from the exceptions described below: the Supreme Court reads the rule as protecting the children's rights, not the property.
• It ends. Since the 2021 wording the Code itself gives the date: the day the youngest child turns eighteen.

Ruling 907/2026, of 11 June 2026, shows how the end works. The daughter was thirteen when her parents divorced in 2018 and agreed that she and her mother would stay in the house; she was twenty-one when the Supreme Court decided. Two lower courts had refused to end the use. The Supreme Court declared it extinguished and gave mother and daughter a last period to move: the house deberá ser desalojada, en el plazo de seis meses — must be vacated within six months. It also refused to let the use run until the couple's property was divided, because that date could be pushed back by one appeal after another.

What about a daughter of twenty-one who is still studying? The same article answers. Once the use is over, las necesidades de vivienda de los que carezcan de independencia económica se atenderán según lo previsto en el Título VI de este Libro — the housing needs of those who lack economic independence are met as provided in Title VI of this Book — which is the title on maintenance between relatives. An adult child's roof is paid for through maintenance, not through the house; how that maintenance is set, and until when, is the subject of our guide to child maintenance in Spain.

Two cases have a rule of their own. Where a child has a disability that makes it advisable to stay on in the home after coming of age, the court sets how long the use lasts. And where some children stay with one parent and the rest with the other, the Code says only that the court will decide as appropriate. The general rule also gives way, the Supreme Court has said, in two situations: when the home in dispute is not really the family home, and when the children's need for a home is properly covered in another way, by an alternative that suits them.

Shared custody: two parents with the same claim

Article 96 was written for one parent with custody and one without. When the children spend alternate weeks with each, the Supreme Court borrows the rule for children divided between the parents, so the court decides as appropriate, and it looks at two things: which parent's interest is most in need of protection, so that the shared custody itself is not put at risk, and whether the home belongs to one of them or to both, pero siempre con fijación de plazo — but always with a time limit set. The terms it has fixed are mostly of one, two or three years. The use is there to ease the passage to two homes, not to settle the house.

Some parents ask for the opposite: the children stay in the home and the parents take turns in it, the «casa nido» or nest home. In ruling 427/2026, of 17 March 2026, the Supreme Court set aside a nest home that the lower courts had ordered and the father opposed: Para acordar un sistema de casa nido es imprescindible constatar que concurre un alto nivel de entendimiento — to order a nest-home system it is essential to establish that there is a high level of understanding — and, save in exceptional circumstances, it should not be ordered if either parent objects. The reasons are practical. A nest home needs three homes, one for each parent and the shared one, and a degree of cooperation that parents in litigation seldom have. In that case the Court gave the use to the father, who had lived in the flat since the separation and could not afford another home, until the son comes of age in 2027. The parents were not married, and the Court decided on the home with the same criteria.

No children at home: the spouse most in need, for a time

When there are no children, or all of them are adults, the second paragraph of the article applies: podrá acordarse que el uso de tales bienes corresponda al cónyuge no titular por el tiempo que prudencialmente se fije — the use may be given to the spouse who is not the owner for the time that is prudently fixed — provided the circumstances make it advisable and that spouse's interest is the one most in need of protection.

Every word limits it. It is a «may», it asks for a greater need, which has to be proved, and it is for a time. The Court has repeated that an award with no end date would be una suerte de expropiación de su uso — a kind of expropriation of its use — and that tal asignación ha de ser con carácter temporal — such an award must be temporary. In the ruling of June 2026 neither spouse had proved the greater need, and nobody was given the house beyond those six months.

When a new partner moves in

Before 2018 the Supreme Court had dealt with a new partner in the home only through the children's maintenance, which it lowered. The plenary ruling 641/2018, of 20 November 2018, went to the use itself. The mother lived in the home, which belonged to both former spouses, with the two children and with her new partner. The Court started from a general statement, El derecho de uso de la vivienda familiar existe y deja de existir en función de las circunstancias que concurren en el caso — the right to use the family home exists and ceases to exist according to the circumstances of the case — and applied it: La introducción de una tercera persona hace perder a la vivienda su antigua naturaleza — bringing in a third person makes the home lose its former nature — because it now serves a different family. It confirmed that the use would end when the couple's common property was liquidated.

The same ruling says what the decision is not. Nobody is forbidden a new relationship; what is questioned, in the Court's words, is that this freedom se utilice en perjuicio de otros — be used to the detriment of others — here, the parent without custody, who owned half of a home he could not live in. And La medida no priva a los menores de su derecho a una vivienda, ni cambia la custodia — the measure does not deprive the minors of their right to a home, nor does it change custody. The later rulings have turned the principle into a routine with four parts.

• A stable partner who lives there. The rulings speak of a third person in a stable relationship who resides in the home; a partner who visits is not what they describe.
• A year, not an eviction. In October 2019, in September 2020 and again in September 2024 the Court ended the use and gave the parent and the children a year to leave: they podrán permanecer en la misma por un tiempo prudencial de un año — may remain in it for a prudential period of one year.
• Maintenance moves the other way. Housing is part of what children are owed. In the 2024 ruling the Court raised the father's maintenance from €250 to €390 a month for each child, payable from the day they leave the home, so that a new home can be provided.
• An agreed use ends too. In the 2019 case the parents themselves had agreed the use in their divorce agreement; it ended all the same.

None of this happens by itself. The parent who wants the use to end must ask the court that made the order to modify it, showing that the circumstances have changed substantially (article 775 of the Civil Procedure Act), or the two must sign a new agreement and have it approved. Until then the judgment stands, and so do the payments it orders.

The mortgage: a debt of the owners, whoever lives there

The most frequent misunderstanding is that whoever stays in the home pays for it. The Supreme Court settled the point in ruling 188/2011, of 28 March 2011, which states doctrine: the instalments of a mortgage taken out by both spouses to buy the family home are una deuda de la sociedad de gananciales — a debt of the community of property — and paying them no constituye carga del matrimonio — is not a charge of the marriage. A divorce court cannot therefore load the whole loan on one spouse as if it were maintenance; until the common property is liquidated, each pays half.

Many international couples are not married in community of property: they signed a marriage contract, or a foreign law governs their property. The answer is the same by another road. In ruling 713/2012, of 26 November 2012, on a couple married under separation of property, the Court held that the loan is a debt que debe satisfacerse por quienes ostentan título de dominio sobre el mismo de acuerdo con lo estipulado con la entidad bancaria — to be paid by those who hold title to the property, in accordance with what was agreed with the bank — con independencia de si su disfrute es otorgado a un concreto copropietario — regardless of whether its enjoyment is granted to one particular co-owner. So the parent in the studio in Puerto del Rosario goes on paying half of the Corralejo mortgage, and a rent.

Two consequences are worth writing down before signing anything. The bank is not a party to the divorce: whatever the judgment or the agreement says, the loan stays as it was signed, and each borrower answers to the bank on the terms of the deed. If one spouse is to keep the house and the loan, the other is released only when the bank agrees, because replacing a debtor, the Code says, can be done no sin el consentimiento del acreedor — not without the creditor's consent (article 1205). A buy-out signed without the bank leaves the spouse who gave up the home still owing the mortgage on it. And a spouse who pays more than their share does not lose the excess: it is a credit against the other, to be brought into the liquidation of the couple's property or claimed.

Community fees, IBI and the bills

The same logic runs through the smaller costs, and the Supreme Court set it out again in ruling 667/2026, of 4 May 2026. Costs that come from using the home, such as electricity, water, gas or the telephone, han de ser asumidos por el cónyuge usuario — are to be borne by the spouse who uses it. Costs that come from owning it, such as the community fees and the property tax (IBI), fall on the owner, because the contribution to a building's common expenses is una obligación impuesta no a los usuarios de un inmueble, sino a sus propietarios — an obligation imposed not on the users of a property but on its owners.

Cost	Who bears it when the judgment and the agreement are silent
Mortgage instalments	The owners who signed the loan, in their shares
Community fees and special levies	The owners
Property tax (IBI)	The owners
Electricity, water, gas, telephone	The spouse who lives in the home

The heading of the second column matters as much as its content: these are default rules. The family court may distribute the costs otherwise, and so may the spouses in their agreement; where neither says anything, la deuda va unida a la propiedad del inmueble — the debt goes with the ownership of the property. These costs are to be weighed with the rest of the measures adopted in the divorce, the Court adds, so the place to argue about them is the divorce itself or a later modification of its measures.

The Land Registry: make the use visible

The use limits what the owner can do with the home. Para disponer de todo o parte de la vivienda y bienes indicados cuyo uso haya sido atribuido conforme a los párrafos anteriores, se requerirá el consentimiento de ambos cónyuges o, en su defecto, autorización judicial — to dispose of all or part of the home and goods whose use has been attributed under the preceding paragraphs, the consent of both spouses is required or, failing that, judicial authorisation (article 96.3). The Code then says where that limit must appear: Esta restricción en la facultad dispositiva sobre la vivienda familiar se hará constar en el Registro de la Propiedad — this restriction on the power to dispose of the family home shall be recorded at the Land Registry. And it adds the catch: La manifestación errónea o falsa del disponente sobre el uso de la vivienda no perjudicará al adquirente de buena fe — a mistaken or false statement by the seller about the use of the home shall not prejudice a buyer in good faith.

Read together, the three sentences say that a use which is on the Registry binds whoever buys, and a use which is not may be lost against a buyer who knew nothing. The plenary ruling of 2010 had already held that the limit on disposal can be relied on against third parties and can therefore be entered at the Registry.

Ruling 952/2026, of 18 June 2026, shows what an empty Registry costs. The home was registered in the husband's sole name, because he had bought it before the marriage, although part of it had been paid for with common money. After the divorce, and before the couple's property was liquidated, he sold it. The former wife sued to undo the sale and lost: los compradores consultaron el Registro de la Propiedad y este publicaba el pleno dominio del vendedor — the buyers consulted the Land Registry and it showed the seller as full owner. Her claim is now against him, in the liquidation of their property. That case was about ownership, not about a use, but the lesson is the one the Code states: what the Registry does not show does not reach a buyer in good faith.

The practical step is small. After the judgment, ask the Registry for an extract on the home and check that the use appears; if it does not, ask for it to be entered, with the court's certified copy of the judgment or of the approved agreement. During the marriage and before any judgment the protection is another article of the Code: the habitual home cannot be disposed of without the consent of both spouses, or the court's authorisation, aunque tales derechos pertenezcan a uno solo de los cónyuges — even though those rights belong to only one of the spouses (article 1320).

Selling, buying out or waiting

The use does not freeze the property; it conditions it. While it lasts, a sale needs both signatures or the court's authorisation, and in practice the spouses choose among three exits, in the agreement or later.

• Sell and divide. The home is sold to a third party, the loan is repaid from the price and the rest is shared according to the title. The parent with the children moves, and maintenance is set with the new housing cost in mind.
• One buys the other out. One spouse takes the whole home and pays the other for their share. It works only with the bank on board, for the reason given above.
• Wait until a date. The co-ownership continues until the use ends, on the youngest child's eighteenth birthday or on an earlier date the spouses fix, and the home is sold then. The agreement should say who pays what in the meantime and what happens if one of them wants to sell earlier.

The Supreme Court itself pointed to the first two in 2018: with a home owned in common, the mother could go on living there if she bought the other half, or it could be sold and she could buy another. What a court will not do is leave the house tied up without a date.

When the home belongs to someone else

Two situations fall outside everything said so far. The first is the flat that belongs to the parents of one spouse, lent to the couple without rent or contract. Article 96 creates no right against them. In the words of the plenary ruling of 2010, el propietario puede recuperar la vivienda a su voluntad, aunque se haya atribuido judicialmente el uso a uno de los cónyuges — the owner may recover the home at will, even though its use has been judicially attributed to one of the spouses. A judgment that awards the use of the grandparents' flat gives a right between the spouses, not against the owners.

The second is the rented home. The Urban Leases Act lets the spouse who is not the tenant stay: that spouse podrá continuar en el uso de la vivienda arrendada cuando le sea atribuida — may continue to use the rented home when it is attributed to them — but must tell the landlord en el plazo de dos meses desde que fue notificada la resolución judicial correspondiente — within two months of being notified of the court's decision — and enclose a copy of it. If the use is attributed permanently, or for longer than the lease still has to run, that spouse becomes the tenant (article 15).

International couples: two questions come first

For a couple with two passports, or with a marriage certificate from another country, two questions come before any of the above. The first is whether a Spanish court can hear the divorce at all, and under which law; that is the subject of our guide to divorce in Spain for international couples. The second is what each spouse owns, which depends on the property regime of the marriage and decides who is an «owner» in the sections on the mortgage and the costs; see our guide to marriage contracts and property regimes. A parent who holds the use and plans to leave Spain with the children has a third: the move needs the other parent's consent or the court's permission, as we explain in moving abroad with children after a separation, and the question of the home is reopened with it.

One more border runs inside Spain. Everything in this guide is the Civil Code, which is the law that applies in the Canary Islands. Catalonia and Aragon, among other regions, have their own rules on the family home, and they are not the same.

The rulings behind this guide

All are judgments of the Civil Chamber of the Supreme Court, cited by number and date.

Ruling	Date	What it decided
859/2009, plenary	14 January 2010	The use is a family right, not a right in rem; a home lent by a third party can be reclaimed
188/2011	28 March 2011	Mortgage instalments are a debt of the common property, not a charge of the marriage
713/2012	26 November 2012	The same under separation of property: the owners pay, whoever has the use
641/2018, plenary	20 November 2018	A new partner living in the home ends its character as the family home
568/2019	29 October 2019	The use ends even if it was agreed; one year to leave
488/2020	23 September 2020	The same after a new marriage; one year at most
1166/2024	23 September 2024	One more year in the home, then higher maintenance
427/2026	17 March 2026	No nest home against a parent's will; a temporary use for one parent
667/2026	4 May 2026	Community fees and IBI fall on the owners
907/2026	11 June 2026	The use ends when the child is of age; six months to leave
952/2026	18 June 2026	A buyer who relied on the Registry keeps the home

A checklist before signing or suing

• Separate the three questions. Read the title deed, the loan deed and the judgment as three different documents; each answers one question.
• Put a date on the use. In an agreement, say when it ends and what happens to the home that day.
• Write down who pays what. Mortgage, community fees, IBI, insurance and bills; where the agreement is silent, ownership decides.
• Check the Registry. After the judgment, make sure the use appears on the home's entry.
• Tell the landlord. In a rented home, within two months of the decision, with a copy.
• Talk to the bank first. No buy-out releases a borrower without the bank's consent.
• Go back to court for changes. A new partner, a child's eighteenth birthday or a change of custody alter the use only through an approved agreement or a new judgment.

The judgment hands over a key, not a deed. The deed stays where it was, and so does the loan.

Our family-law team at the Costa Adeje and Corralejo offices advises on divorce agreements, on claims to modify the use of the home and on the liquidation that follows; the consultation is a paid one, quoted in advance. The service is described on our family law page, and the contact page has both offices' hours.

Common questions

The house is in my name only. Can my spouse stay in it with the children?

Yes. Without an agreement, the use of the family home goes to the minor children and to the parent they live with, whoever owns it, until the youngest comes of age. You remain the owner and the use takes nothing from your title, but while it lasts you cannot dispose of the home without your former spouse's consent or the court's authorisation.

I have moved out. Do I still have to pay half of the mortgage?

If you own half and signed the loan, yes. The Supreme Court treats the instalments as a debt of the owners, not as a family charge, so they are shared according to the title and the loan deed, whoever lives in the home. Towards the bank nothing changes with the divorce. If you pay more than your share, you have a claim for the excess.

My former spouse's new partner has moved into the house. Does the use end?

It can. Since the plenary ruling of 20 November 2018, a stable partner living in the home makes it lose its character as the family home, and the use can be ended. It is not automatic: you must ask the court to modify the measures. In the cases decided since then the Court has given the parent and the children up to a year to leave and has revised the children's maintenance to cover their new housing.

Our youngest has turned eighteen. What happens to the house?

The use given because of the children ends with their coming of age; if you cannot agree on what to do with the home, either of you can ask the court to declare it. The court may allow a short period to move, six months in a ruling of June 2026, and may give a temporary use to the spouse who proves the greater need. A grown-up child who still depends on you is covered by maintenance, not by the house.

Can the home be sold while one of us has the use?

Only with the consent of both or with the court's authorisation. If the use is entered at the Land Registry, any buyer is bound by it; if it is not, a buyer in good faith who relied on the Registry is protected, and the spouse who lost the home is left with a claim against the one who sold. That is why the entry is worth checking in the week after the judgment.

This article is general information as at 1 October 2026, not advice on any particular case; it follows the Civil Code (articles 90, 96, 103, 1205 and 1320 in their consolidated text, article 96 as worded by Ley 8/2021 of 2 June), article 15 of the Urban Leases Act, article 775 of the Civil Procedure Act and the Supreme Court rulings listed above by number and date. Regions with their own civil law apply different rules; a consultation with our family-law team is a paid service.