Divorce with exclusive property

The case concerns a house that the husband had purchased before getting married , and that is why it was registered as his (exclusive) in the Property Registry. However, during the marriage —under the community property regime— they were paying installments of the mortgage loan. Upon divorce, the wife understood that this circumstance gave her a “right” over a part of the house and, therefore, she requested that the sale made by the husband to some buyers be declared null, because he sold without her consent. Moreover, in the community property settlement procedure, she included that part of the property as something to be divided.

The key issue was whether the sale could be annulled for the wife not having consented, if the property was exclusive, but was partially paid with community money . And, in parallel, what happens to the buyers who relied on what the Registry stated?

The Supreme Court (TS) upheld the buyers' appeal and annulled the nullity declared by the Provincial Court, in other words, the sale is not annulled . The main reason is that, if the seller appears as the owner in the Registry with powers to sell and there are no registration signals that raise suspicion, the buyer who pays a price and registers their purchase is protected as a good faith third party (art. 34 Mortgage Law). The Supreme Court rejects that, simply because the seller was divorced, the buyer has to investigate "outside the Registry" possible conflicts or rights of the ex-spouse.

And then, what happens with the community property contributed to the mortgage? The Supreme Court says that this discussion (how much corresponds to community property, if there are compensations, percentages, etc.) must be resolved in the procedure of liquidation of the matrimonial economic regime , not through a lawsuit to annul the sale. The possible "pending account" between ex-spouses is settled between them, but does not overturn the sale in front of a buyer protected by the Registry.

In controversies regarding the family home after the family crisis or during and after the processing of a family case, our professionals will provide you with the appropriate legal assistance and undertake the actions that correspond in your case.