Family Property: What you should know

In short, a family asset is that which serves as a residence for a family. In material terms, the family asset corresponds to the property used as housing by the family and also to the movable property contained in the family property. This explanation is practically the definition that the Civil Code makes in its article 144 on this matter:

What is the use of declaring a family asset?

You are probably wondering what a family good does for a family. The answer is to protect the family’s residence against certain situations that could put it at risk.

For example, protecting it against the eventuality that a family loses its home because one of the spouses decided to sell it and dispose of it without the consent of the other spouse. Or, protect it from the owner of the real estate paying it in favor of a third party.

 As we will see later, there are certain restrictions that prevent these situations from happening thanks to the fact that a property was declared as family.

How is a property declared as a family asset?

Declaring a property as a family asset is a fairly expedited process, in accordance with the provisions of the Civil Code. The law considers the following rules for this:

  • The Family Court Judge summons the interested spouses to a preparatory hearing. If there is no opposition from any of the parties, and there is sufficient background, the judge decides in that same hearing to declare a property as a relative.
  • If there is a lack of information, the judge will summon a second trial hearing to resolve the statement.
  • In any case, it is enough to file a lawsuit to declare a property as a family for a judge to provisionally transform it as such. To do this, it will notify the Real Estate Conservator ex officio so that it can enter a sub-registration on the property.

What happens to a family asset when there is a divorce?

When a marriage is over, and the spouses are separated or formally divorced, there are several points to keep in mind regarding family assets:

  • The law allows spouses to disaffect a family asset by mutual agreement. If it is real property, this declaration must be made by public deed.
  • If there is no agreement between the spouses to disaffect a family asset, and the owner is the one who wants to disaffect it, I can request it before a judge, arguing that it is not being used as a family residence. This must be proven so that the judge disaffects the real property ex officio.
  • This request before a judge can also be made by any of the spouses or co-inhabitants under the same argument, in the event that the marriage is declared null, or is terminated by death or divorce.

Also, keep in mind that a judge can establish in favor of the non-owner spouse a right of usufruct or use or habitation of a family asset for a specified period to protect the interests of the children or the assets of the spouses.