Property effects of couples and connected issue from a european and spanish PIL

the use of the family home after the breakout

Abstract

This paper addresses one of the most complex issues in cross-border practice when it comes to couple’s breakout: the attribution of the use or destination of the family home. The classification of this essential aspect of the couple’s lives can fall in the material scope of the different legal instruments and conventional texts on family property law. This characterisation is decisive to identify the specific PIL sources. In the European Union context, two instruments are in the spectrum: the recitals of Regulations 2016/1103 and 2016/1104 provide with the possibility of including the use of the family home within the autonomous concept of property regime. However, this assertion is not automatic depending on the specific factors involved in each case. In any case, this does not apply to unregistered partnerships, which fall outside the subjective scope of Regulation 2016/1104. This paper tries to present the different scenarios that could arise in practice to carry out the operation of localisation of the PIL system, as well as to propose solutions that, based on the instruments in force, guarantee, as much as possible, a unified approach that contributes to the desired objective of legal certainty and predictability.