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In the field of Civil Law, one of the most delicate and frequent conflicts is the breakdown of a marriage as a result of infidelity. This type of situation not only involves an emotional toll on the parties, but also a series of legal consequences that affect both spouses and any minor children they may have had together. In this article, we analyse a recent judgment handed down by a family court in which a separation was resolved in which the main cause was the husband’s infidelity, and in which measures were also established regarding child custody, alimony and the use of the family home.
Infidelity as a cause of marital breakdown
Although in the Spanish legal system it is not necessary to justify the cause of a separation or divorce, in certain proceedings the behaviour of the parties may be assessed for the purposes of attribution of burdens, use of the home and decisions on custody. In the case under analysis, the court took into account the husband’s proven infidelity, which was considered a serious breach of marital duties, in particular the duty of fidelity under Article 68 of the Civil Code.
Although infidelity is not in itself a cause for limiting property rights, it can influence decisions linked to the best interests of the children, the determination of provisional measures and the family climate generated after the break-up.
Custody of the minor children: best interests of the minor
One of the central points of the judgment was the attribution of custody of the minor children, aged 5 and 8. The court considered that, due to the emotional tension generated by the infidelity and the subsequent forced cohabitation in the common home, as well as the greater degree of involvement of the mother in the upbringing and daily education of the children, it was most appropriate to establish a regime of sole custody in favour of the mother.
The father, for his part, obtained a broad and progressive visiting regime, including alternate weekends, a weekday evening with an overnight stay, and holiday periods divided equally. This decision responds to the guiding principle in custody matters: the best interests of the child, which takes precedence over all other rights.
Child support
As regards child support, the judgment imposed on the father the obligation to pay a monthly amount to cover the ordinary expenses of the children: food, clothing, education, health and extracurricular activities. The amount was set at 450 euros per month for each child, taking into account the level of income of the non-custodial parent and the needs of the children.
The pension must be updated annually in accordance with the Consumer Price Index (CPI), and it was also established that extraordinary expenses, such as medical treatment not covered by social security, special activities or school trips, would be shared on a 50/50 basis.
Use of the family home
One of the most discussed aspects in separation or divorce proceedings is the attribution of the use of the family home, especially when it is jointly owned. In this case, although the property was registered in the name of both spouses, the court granted its exclusive use to the mother and the minor children, on a temporary basis, until they reach the age of majority or are legally emancipated.
This decision is based on Article 96 of the Civil Code, which prioritises the welfare of the children over the ownership of the home. The father must leave the family home and cannot demand compensation for the exclusive use of the home as long as the need to maintain the children in a stable environment persists.
Division of assets and liquidation of the matrimonial property regime
Although the judgment did not resolve the liquidation of the matrimonial property regime, which was reserved for a later proceeding, the community property nature of certain common assets and debts was recognised. The home, although jointly owned, was considered to be 50% community property, which will allow it to be sold or awarded to one of the spouses in the future with the corresponding financial compensation.
The parties were recommended to reach a consensual liquidation of the common assets to avoid further legal disputes and to facilitate the economic stability of both parents after the separation.
Key legal aspects of the case
1. Infidelity as a value element:
Although it does not prevent the exercise of rights, it may influence the attribution of custody and the assessment of the family environment.
2.Sole custody for stability:
It is awarded to the mother for the benefit of the children, considering the previous dedication and the emotional environment.
3.Alimony proportional to income:
It is fixed according to the needs of the children and the economic capacity of the obligor parent.
4.Family housing for the children:
Priority is given to their well-being and continuity in their habitual environment, even if the property is shared.
5.Subsequent separation of property:
The liquidation of the economic regime will be dealt with in a separate process, respecting the rules of the community of property.
Conclusion Custody, Alimony and Use of the Family Home
This case demonstrates how Civil Law deals comprehensively with the consequences of a marital breakdown, protecting the rights of minor children as a priority and ensuring a balance between the spouses in property matters.
At CIVIL SP, we have a team specialised in family law that can advise you in cases of separation, divorce, custody, alimony and distribution of assets. Our commitment is to offer empathetic, rigorous and effective legal support, always seeking the fairest and most favourable solution for our clients.
For further information, or to arrange a personalised consultation, please do not hesitate to contact our law firm, experts in Civil and Family Law.
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