Buying a home is one of the most important decisions couples make in their life together. So, everything is hopes of happiness. But, in most cases, love is not enough. Divorce applications filed in 2021 totaled 93,505, 2.7% more than in 2020, according to the CGPJ. In the separation process, the management of the property generates headaches as it is not easily divisible. What if one wants to sell and the other doesn’t? What if there is a mortgage?
At the risk of seeming nonsense, experts advise regulating the effects of a supposed divorce before the yes I do. “It is recommended to define the marriage agreements in a notary, which establishes the economic consequences in case of separation”, according to Abel Marín, partner of the law firm Marín & Mateo Abogados. If these documents are not taken into account before or during the marriage, the regime defined by the autonomous community will have to be accepted. In Catalonia and the Balearic Islands there is separation of property while, in most communities, marriages are governed by the community of property. In these cases, the two parties will share equally the benefits obtained in the relationship.
Once the divorce is formalized, there are several ways: sell to a third party, assign it to one of the parties or rent it. The decision to sell would go through defining the value of the property in the first instance. “In most cases, an agreement is reached. But if there is a conflict, they will go to a court and to an appraisal company, in which case the house can end up at auction and obtain a lower amount than extrajudicially,” he says. Arantxa Goenaga, partner of the firm Círculo Legal Barcelona. Not getting a good understanding with the ex-partner often cannot be chosen, but the repercussion in the pocket and the time must be accepted, bearing in mind that the price of an auction can be 30% lower and the time can extend up to more than one year.
When one of the two people wants to keep the entire house and the other is willing to give up theirs, there are legal figures that are more beneficial than the sale. For example, if the regime is of separation of property, you can choose what is called a condominium exemption. “It is only taxed for Documented Legal Acts, applying between 0.5% and 1%”, while the property transfer tax -which is paid when selling- amounts to 10%, adds Goenaga. This figure also saves other expenses such as municipal capital gains. In these cases, the one who acquires the home must pay an amount to the other as compensation and put the mortgage in his name. Although the shadows that exist in the separations grow when there is a mortgage involved. And it happens in most cases. It is common that the bank does not want to go from having two guarantees to one and it is possible that it asks for another guarantee or that it rejects it if it does not see it as a good deal. “One party is left homeless but remains the owner and, if the other person stops paying, they could go against the one who no longer lives in that house,” he says. Antonio Gallardo, iAhorro mortgage expert. If this happens, it is advisable to cancel and create a new mortgage in another entity.
In a scenario in which one refuses to sell the house, the one who wants to get rid of the property can resort to the sale of joint venture, which implies selling the part of one’s own to the ex-partner or to a third party. “An external person is not going to buy 50% of a flat, so they are normally investors looking for a more speculative purpose,” he says. Goenaga. In these cases, the price falls significantly compared to the market price because there is no access to full ownership. This can be an opportunity for the couple or a trigger for conflict, because you can end up sharing a house with a company.
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And maintain co-ownership? The spills or the IBI can also generate tensions “because the one who continues to live there must continue paying, but many times to annoy the other they do not pay”, indicates Goenaga.
when there are children
Separating with children is one of the most complex assumptions, and the result of housing will depend directly on custody. The sale can become impossible if it is considered that the operation poses a risk to the minor and the judge does not authorize it, which commonly happens. “Normally it cannot be sold because its use is attributed to the parent who holds custody, at least for a while,” he says. marine. In case of being shared, the judges will decide who will be able to take advantage of the house, unless there is an agreement. “There may be cases in which the house belongs to the father and custody is attributed to the mother and the use of the house for having less purchasing power. Although temporary until the child reaches a certain age,” he adds marine. And divide the property? There will always be the option of segregating into two independent houses with the authorization of the neighborhood council, as several sentences have ruled. What will not be insured in these cases is that the disputes do not flow.