What happens to rental housing in case of divorce?

In 2023, the National Institute of Statistics (INE), registered 76,685 divorces in Spain, something that led many of the couples living in rented housing to ask themselves: who has the right to stay in the house, what happens if there are children, what happens if only one of the spouses is in the contract?

In order for you to have the answer to these questions always at hand, KM2 Real Estate Services has prepared the definitive summary that will help you to know how to proceed.

In the case that the rental contract is signed by both of them

When a couple living in a rental apartment divorce and both of them are listed as owners on the lease, both of them are still responsible for fulfilling the obligations agreed upon with the landlord. This is why it is necessary to amend the lease.

One of the ex-spouses will be able to stay in the apartment, either by court decision or by mutual agreement. However, the landlord must be notified of the change of ownership and it must be updated in the lease.

If only one of the former spouses is listed as the tenant

In some cases, the lease only lists one of the former spouses as the owner. In these situations, the way to proceed depends on whether the couple has children or is a common-law couple.

• If there are children

Generally, the spouse who remains in the dwelling is the one who has custody, as established in the judgment or separation agreement.

Now – if you decide to stay – it is important that you notify the landlord within a maximum period of two months from the date of the judicial resolution to become the new tenant, with the same rights and obligations of the original contract, as established in the Urban Leases Law (LAU).

• If there are no children

In the event that the divorced couple with a rental has no dependent minor children, the former spouse who is in a more vulnerable economic situation usually stays in the property.

In this way – as long as the procedure of notifying the owner for the change of ownership is followed – if the former spouse who is not in the contract is the one who has greater financial difficulties, he/she will be able to stay in the property.

• If you are a domestic partner

In this scenario, there is an additional condition: the ex-spouse who is not on the lease must have lived continuously with the lease holder for at least two years prior to the separation.

This clause does not apply if they have children in common, in which case it is only necessary to prove cohabitation without a specific time limit.

In the event that the tenant decides to terminate the rental agreement due to divorce

It is possible that the person listed as the lease holder decides to terminate the lease without consulting his or her former partner. In this situation, the non-tenant former spouse could continue to reside in the dwelling, and the landlord would have no right to object.

The landlord must ask the tenant to confirm his or her intention to continue or leave the dwelling. If the owner does not respond within 15 days of notification, the lease will be considered terminated.

In any case, any change in the rental agreement due to divorce must be notified to the owner and reflected in a new clause in the lease.

Manage the rental of your property with KM2 Real Estate Services

In KM2 Real Estate Services we are aware that in case of divorce, the management of the properties by the owners can be complicated.

For this reason, if you need advice to rent your property, our sales department will propose a strategic marketing plan to carry out all the necessary procedures in accordance with current legislation.

Do not hesitate to contact our agents for more information or visit us at any of our real estate agencies in Barcelona and Madrid.