La inscripción registral de bienes inmuebles en sociedad de ganancialesuna concreción del principio constitucional de igualdad entre cónyuges

Resumen

The purpose of this doctoral thesis is the study of the registration of the acts of acquisition, administration and disposal of real estate within the framework of the community property. Firstly, the essential aspects of the registry function and its informing principles are addressed (chapters I and II), as well as the study of real estate from a double perspective: as an object of registration (chapter III) and as an integral part of the community property (chapter IV). Subsequently, the core aspects of this thesis are analyzed: the registration of acquisitions of real estate with a private or exclusive nature of one of the spouses (chapter V), the registration of the same in the event that they have a marital nature (chapter VI) and the registration of the acts of administration and disposal (chapter VIII). Finally, the impact that the approval of Regulation (EU) 2016/1103 has had on these matters in relation to foreign matrimonial property regimes is analyzed. This thesis answers several problematic or unresolved questions in jurisprudential or doctrinal matters, as the excessive rigor of the requirement for public documentary proof of private funds; a criticism of the doctrine of the attribution of privacy of the DGSJFP; the complex business as a failure of the principle of co-disposition; the restrictions on the approval testimony of the regulatory agreement ex article 90 of the Civil Code; or the sudden inadequacy of article 92 of the Mortgage Regulations as a registration procedure for real estate purchases by foreign spouses; among other. Likewise, when appropriate, lege ferenda proposals are derived from the conclusions of the doctoral thesis. Conclusions I. About the correlation between the criteria of the Civil Code and the Mortgage Regulation ones as for the acquisition and management of immovable properties. Every acquisition of real estate is normally registered in the Land Registry to deploy all its effects in legal traffic. The registration rules of the Mortgage Regulations develop the Civil Code on this point and its criteria are adapted in mortgage terms to those established by it. The Civil Code imposes the existence of three types of assets, the community property and the private property of each one of the spouses, and envisages clear principles of organization: the presumption of common property, based on the vis attractiva of the ganancialidad or common goods and real subrogation in order to maintain the balance between the three types of assets, and the principle of the autonomy of the parties through which the spouses can balance their interests in the sociedad de gananciales or common assets of the spouses. The Civil Code establishes a general rule of joint management or consent of both spouses in Article 1375, which governs this matter — “the management and disposal of common goods shall correspond jointly to the spouses”— and its wording leaves, therefore, very little room for unilateral actuation, although some are allowed by art. 1384. The Mortgage Regulation recognizes the existence of differentiated assets—privative and common— and adjusts the land register principles to the rules of the Civil Code, in particular joint management or co-disposition —Articles 93 and 94—. On the other hand, it regulates the legal standing of privative assets or privativity by subjecting it to the mortgage principle of authentic title or legality in the formal sense, since it requires public documentary evidence to rebut the presumption of common property. This particularity, obviously, does not arise from the Civil Code but is consistent with the principles of the Spanish land register system in accordance with Articles 3 and 4 of the Mortgage Act. The principle of joint management that governs marital assets also has its continuity with the registry principle of enchained title established in Article 20 of the Mortgage Act and confirmed by Article 40, by which is required that all new developments, modifications or alterations on common assets should be made by agreement of both spouses. The big difference between Civil Code and Mortgage Regulation or the greatest dissonance between mortgage regulations and civil regulations lies in the possibilities of unilateral action explicitly included in the Article 94 of the Mortgage Regulation, admitting the legitimation of the spouse who appears to be the proprietor -denying it to the non-proprietor– in order to perform acts that the doctrine considers as riguroso dominio or quasi-disposal, mainly the so called modifications of entidades hipotecarias (land register entities) -grouping, fragmentation or division of plots, declaration of new construction over the plots, constitution of a horizontal ownership regime concerning a real estate… —. It is obvious that the scope of these acts is greater than that of the mere “acts of administration” referred to in Article 1384 of the Civil Code. It seems that we can affirm that, despite the fact that the schema of the similar acts is generic, the Mortgage Regulation draws the border between true acts of disposal, reserved to joint decision, and those that do not reach this range even if they come close to it. The Mortgage Regulation therefore favors that the proceedings are more simple, by allowing only one spouse to act without the need for the intervention of the other. What seems less satisfactory for the coherence of the system is that this spouse must necessarily be the registered owner, if we are consistent with the idea that the community property is actually a Germanic community or in common. Furthermore, not all interpretations favorable to the expansion of unilateral action by spouses are so easy to admit. A point is to maintain that, since there is a community in common, Germanic hand, each of the spouses can grant those acts that do not reach the range of dispositive acts and a very different point to facilitate the expansion of unilateral action precisely for acts of disposal. The concordance of the Mortgage Regulation with the Civil Code, and the coherent regime they establish, may be altered by certain interpretations carried out by the registry general directorate, such as the doctrine of the negocio complejo or complex contract, which seems to imply a breach of the principle of co-disposition (Articles 93 and 94 of the Mortgage Regulation in relation to Article 1377 of the Civil Code); or the doctrine on the attribution of privativity, which has the prospective of voiding the rules of the Article 95 § 4, 5 and 6 of the Mortgage Regulation. II. About the divergence between the legal nature of the community property as a Germanic community and the ownership of the assets registered for this community property. Once accepted the opinion that legal nature of the community property is a community of property of a Germanic type or in common, however, a certain contradiction remains with respect to the registry standing, which grants possibilities of unilateral action to one of the spouses, the only registered owner, in Article 94 of the Mortgage Regulation, whereas are denied to another – the non-owner –, what theoretically it would not be consistent with the doctrinal status of such legal nature. In other words, it does not seem consistent with the Germanic nature acknowledged in the community property (almost unanimously by doctrine and in any case by jurisprudence) that the only legitimate party is the registered owner. This is not coherent with the idea that the comunidad de gananciales or community of properties is actually a community of a Germanic type or in common. On the contrary, if we draw a dividing line between acts of disposal and non-disposition acts, in order to increase the possibilities of unilateral action, the logical one would be to recognize legitimation to make acts not only to the registered spouse but to both members of the community property. But, in conclusion, it is necessary to admit that the current text of the Mortgage Regulation does not allow us to accept this option nor an undue interpretation should be forced in this sense, since it seems to keep on a sure legislative purpose and for the reason of respecting the principle of registry legitimation. As a proposal of lege ferenda, we may suggest to extend the legitimation of unilateral acts by each of the spouses could hypothetically be carried out, except in the event of acts of disposal (otherwise it would distort the nature of the community of property). But this would require, first of all, to reform the Civil Code, whose legal requirement of joint decision of the spouses is clear and definitive, not only according to the Articles 1375 and 1377 as for acts of management and disposal, but also the Article 1376 as for acts of administration. In any case, the doctrine that favors unilateral legitimation to carry out acts on community assets that do not reach the range of acts of disposal, regardless of who the titular spouse is, has few cases. The aforementioned 1995 Resolution regarding the declaration of new construction is one of them, it is poorly founded and, contrary to what we might assume, it does not assess conceptually the difference between acts of administration and disposition. Not only have its guidelines not been followed by the registry directorate but after the promulgation of RD 1093/1997 it no longer seems applicable in terms of the declaration of new construction, which was the axis of the factual assumption. III. About the too strict interpretation of the requirement of public documentary evidence for the privative funds. The requirement of public documentary proof of the funds used to justify the privativity of an acquisition may be excessively severe and in fact seems to be forcing the occurrence in the legal traffic of a debatable category within the Civil Code such as the attribution of privativity. Current jurisprudence and the doctrine of the General Directorate of Legal Security and Public Faith have confirmed how problematic it is to prove the origin of the funds used for the acquisition of an asset, due to the fungibility of money and its difficulty in traceability. This is the main obstacle to register some acquisitions as privative properties even though they are privative indeed. It is much more debatable that the fact that a spouse who has already sold a private asset and executed a deed of its sale that reflects clearly he/she receives privative funds is not considered sufficient documentary evidence. The Spanish mortgage general directorate does not even accept that having obtained such privative price, it can reasonably be presumed that such spouse has sufficient private funds, using, where appropriate, the maximum figure of the price of that sale as a justified limit of the privative to be applied to the acquisition and stating the acquirer precisely that these are such funds and that he uses them precisely for that purpose (and no other). The interpretative reluctance that the General Directorate of Legal Security and Public Faith maintains in this regard could, indeed, be exaggerated in this case. And a favorable interpretation of these indications is also possible, although it would be advisable de lege ferenda to incorporate a legal response such as that of the Foral Code of Aragon. Given that this hypothesis is reasonable, Aragonese law includes a provision —Article 213 of Legislative Decree 1/2011, of March 22, which approves the "Foral Law Code of Aragon"— which authorizes to presume —unless judicially proven otherwise— that private funds have been aimed to the acquisition when obtained from a sale of a previous private asset as long as “the period of two years between both deeds has not passed.” The presumption of privativity of Aragonese law is, we insist, reasonable. But the Civil Code neither includes anything similar nor can it be based on it according to the current dominant interpretation. And this despite the fact that, as we are going to see, other solutions similar to those of the Aragonese law - and also the Navarrese law - have been added to the Civil Code and do not seem to fit into its precepts either. We are referring to the attribution of privacy newly accepted by the doctrine of the General Directorate of Legal Security and Public Faith. IV. About the scope of the vis attractiva of community property and the presumption of common property (ganancialidad). It is known to all that the Civil Code favors the so-called vis attractiva of community property on the basis (although not only) of the presumption favorable to the community nature of assets whose private nature has not been specifically proven. Given that constant marriage acquisitions are very frequently carried out with money, and that its fungibility and difficult traceability are widely highlighted, it seems that all monetary acquisitions will be absorbed by the legal presumption of common property. We note that in the field of the land registration the presumption of common property is not rebutted in any way or by any means admitted by law and that, in particular, it cannot be rebutted by means of another presumption in the opposite sense, such as the proof of that the purchaser has private funds and declares that they will be applied to the acquisition. Any other way to rebut it seems closed. The presumption of community ownership, for the purposes of the land registration, only ceases through a proof that must be not only documentary but also public (Article 95 §4º of the Mortgage Regulation). But definitely, there is a doubt as to whether we are understanding the presumption of community property in its proper terms and lawful questions arise about whether this is the reason why certain doctrines or theses have emerged that somewhat forcibly expand the possibilities of privativity relying on one of the principles of the community property, the autonomy of the will of the spouses. One of the most important but also most generic principles. V. About the doctrine of the attribution of privativity made up by the General Directorate of Legal Security and Public Faith. We usually highlight that the institute of community property is founded on the basic principles of respect for the autonomy of the will of the spouses, real subrogation and the presumption of community property —as an expression of the acknowledged vis attractiva of community property—. Among them, the Civil Code establishes a balance, favorable to the autonomy of the will of the spouses, certainly when there is a cause. But it is not completely understood why it is considered, as if it were lege data, that the autonomy of the will is made to prevail over the other two, so forcefully, to provide a basis for the attribution of privacy of the acquired goods. The doctrine that accepts that the attribution of privacy is possible within the Civil Code comes exclusively from the General Directorate of Legal Security and Public Faith. The directive center assumes that the attribution of privacy complies with the Civil Code and justifies it by claiming that it is the other side or reverse of the attribution of common ownership from Article 1355 of the Civil Code. Regarding this doctrine, from a critical point of view, the following must be noted: 1st. Admitting that by agreement between spouses (largely abstract) the privativity of an asset is established may void the confession of privacy of content, the provisions of articles 1324 of the Civil Code and 95.4º, 5º and 6º of the Mortgage Regulations, and lead to breach the interests of creditors or legitimarios (forced heirs). The fact is that the legislator of the Civil Code - unlike the Derechos forales (regional legislation) - did not expressly provide for any other means of attributing privacy than confession of privativity, subject to limitations. 2nd. The admission of the doctrine of attribution of privativity does not adequately respect the protection of third parties, particularly creditors. Nor the interests of forced heirs (legitimarios), even if they are successors in title and not third parties. The agreement to determine the exclusive nature is admitted with the only requirement of a laconic causalization or expression of cause. This borders on the abstraction of the cause, particularly with regard to acquisitions for consideration, since potentially the cause can vary from a sale or assignment of goods in payment of debt to the generic right of reimbursement that both spouses have at the time of liquidation of the property. The most appropriate and “fair terms”, the true cause requirements, were described by the DGRN in Resolution of September 25, 1990, distinguishing between the cause of the contract that should be specified depending on the type of contract in particular (art. 1323 of the Civil Code), and the cause of property attribution, since it refers to what is called “conjunction with the purchasing contract” of attribution. But, as we see, it is not this doctrine, which would allow creditors direct knowledge of the business concluded between the spouses (and therefore of their civil actions), that the General Directorate of Legal Security and Public Faith has opted for. The management center has preferred another one in which the causalization requirements are lower; and guarantees in favor of creditors, too. 3rd. There would be nothing to object to a broad interpretation of art. 1323 and the possibility for spouses to enter into all types of contracts between both of them, enjoying the fullest autonomy of will, but we must not forget that this also has certain limits, those established in Articles 1255 and 1258 of the Civil Code: among them, the law, good faith and the absence of damage to a third party. These natural limits should also be presupposed in the agreement granting privaticity and if this were the case we would probably realize there are difficulties in admitting it, insofar as it may be a way that enable to harm the rights of creditors, like avoiding confession. 4th. Particularly in some Resolutions of the General Directorate of Legal Security and Public Faith that keep this doctrine (such as those of June 12, 2020 and January 15, 2021) there seems to be a certain internal incoherence. The weak requirements of causality are satisfied in these cases because the spouses agree that “there is no right of reimbursement” between both of them. If there is not even a right to reimbursement, then the cause of the agreement of attribution of privativity appears as a gratuitous cause of for free, not for valuable consideration —as said Resolutions paradoxically point out—. This gratuitous cause could well have been invoked or explained without ambiguity, since at this point there is no question, gratuitous cause is equivalent to donandi causa and it is indisputed that according to Article 1274 always consists of the generosity of the benefactor. 5th. The interpretation made by the mortgage center regarding the attribution of privativity, get as far of reaching the same result that is achieved through the application of the Aragonese, Navarrese or Basque laws, but certainly the Civil Code lacks the rules for this purpose that have already been taken (for that purpose and with a clear legislative purpose) into these Foral Rights. Contrasting the regulation of the Code with that of the regional acts, which explicitly provide that by agreement of the spouses both a private asset can be converted into a common asset and a joint asset can be converted into a private asset, we come to the conclusion that in the Civil Code there is a conspicuous absence of similar provision that authorizes that common property can become pure privative property by the mere agreement of the spouses. This does not seem to have been an oversight by the legislator. Considering what we say, the doctrine of the directive center could seem like a forced interpretation and not accepted or regulated by the Civil Code. 6th. The interpretation made by the management center based on Article 1355 or considering the attribution of privativity as the reverse of attribution to the community property is not convincing. Certainly Article 1355 refers exclusively to the attribution to the community property and should not be assumed to involve a reversal in favor of privativity, rather what it seems is that Article 1355 admits the attribution of community property, as the only option. This provision contains nothing in favor of the attribution of privacy, which seems rather implicitly unrelated to it. 7th. The degree of interpretive tension is maximum when confronted with the rule that the presumption of community property can only yield to pure privacy by the means of a public documentary evidence, since there is not only one exhaustive rule in this regard, Article 95 §2 of the Mortgage Regulation, but also constant jurisprudence that supports it. Note that the rule also works within the framework of Article 95 of the Mortgage Regulation, dedicated to assets registered as privative due to confession. Well, outside of these two possibilities—privacy accredited by public documentation, privacy by confession— we find no other express in mortgage (or civil) regulation. Despite all these objections, the General Directorate of Legal Security and Public Faith currently considers completed its work of building such criterion, to the point of reconstructing the sources of privativity, concluding that there are three ways to prove or “sources” of privacy. : the reliable and full proof, the confession of the consort - of these two we never had any doubt - and, thirdly, the attribution of privativity agreement - the debatable novelty - whose only apparent requirement is the causalization of such agreement, understood in the “fair terms” (rather weak or superficial) to which their doctrine boils them down. VI. About the complex contract as a breach of the principle of co-disposition and the rules provided for by Articles 1377 of the Civil Code and 93§1 of the Mortgage Regulations. The conclusions on the state of the art of the complex contract and its impact on acts or contracts simultaneous in time by which the acquisition of common assets is verified, essentially sale and purchase with a mortgage, are the following: 1. The complex contract doctrine, as formulated by the DGRN, constitutes an exception, a breach if you will, of Articles 93§2 and 94§3 of the Mortgage Regulation and Article 1377 of the Civil Code (including Article 1320), because the consent of the spouse is dispensed with in the act of granting the mortgage contract and because the qualification of the dispositive act that is the mortgage is neutralized or ignored and limited to that of the contract whose primacy is affirmed, which is one of acquisition and not disposal —and whose requirements are those of an act of acquisition and not disposal, normally greater. To use the words of Article 18 of the Mortgage Act, the registry scrutiny of the validity requirements of the purchase and mortgage dispositive acts is reduced to those of the purchase. We have had to go back to DE CASTRO's doctrinal construction in his essential book “El negocio jurídico”, in order to reassess the true reason of this category and to recover the concern for the complete concurrence of the imperative requirements demanded of the contract that are would be integrated unitarily into the complex contract. The cases mentioned by DE CASTRO as complex contracts, coming from court decisions, reveals that they are usually contracts of a similar nature and for which very similar requirements are demanded. The General Directorate of Legal Security and Public Faith considers sufficient to meet the requirements of what is considered economically as the main contract, and it is acceptable to omit compliance with the requirements required for the accessory contract. And yet, this being the mortgage (and even though it has the nature of an accessory right), they should not be ignored in any way. The requirements of the mortgage contract, of the voluntary mortgage, when put in relation to other contracts, are the most severe: full power of disposal (Article 1857 of the Civil Code and 138 of the Mortgage Act), explicit mandate (art. 1713), full capability to act (art. 1857 Civil Code and 138 Mortgage Act) and, of course, joint consent or rule of co-disposition of the spouses (Articles 1377 of the Civil Code and 93 and 94 of the Mortgage Regulation). 2. The doctrine of complex contract reduces the guarantees of the non-intervening spouse in said contracts: Regarding the responsibility of property assets because Article 1371 of the Civil Code also triggers liability “for other assets in accordance with the Code”, no matter how much this doctrine rejects it, except when is agreed (very rare) a limited liability to mortgaged assets regulated by the Article 140 of the Mortgage Law, the only mean that allows the responsibilities generated by the acquisition to be limited exclusively to the acquired property, and definitively prevents it from affecting the joint and private assets of the spouses. Only through the limitation of liability agreement can it be stated that this is restricted to the encumbered asset without harming the owner, which was one of the main arguments of the 1968 resolutions. In this regard, it should be noted that normally what is guaranteed by the mortgage is not the payment of the deferred price directly, but the obligations derived from the mortgage loan, which are normally diverse, and because when the mortgage is contracted, the non-acquiring spouse is being deprived of the qualified financial information required by Act 5/2019 and provided for Directive 2014/17/EU of the European Parliament and of the Council, of February 4, 2014 as a guarantee of responsible credit. 3. From the point of view of legal theory, the thesis of the complex contract that includes purchase and mortgage seems reviewable because, as designed, the verification of the requirements of an acquisition contract (the sale) exonerates the verification of the requirements of a disposition contract (the mortgage). But these contracts are structurally different and imply different requirements, even though it is stated that the complex cause absorbs the accessory cause. As we have said, the complex contract doctrine used by the DGRN leads to contradictions. In the event that the purchase and mortgage are granted by a spouse whose matrimonial property regime is subject to foreign law, proof of compliance with the requirements of this foreign law is required - which will generally consist of the consent of the spouse to the mortgage; and in the event that the purchase and mortgage are granted by the parents of a minor, judicial authorization for the mortgage is required. But, in the case of an asset acquired for the community of property, however, DGRN does not considers as neccesary the consent required imperatively by art. 1377 of the Civil Code and art. 93 of the Mortgage Regulations. What does the DGRN base its criteria on to establish these differences? Is the consent of the marital partner less imperative than the requirement of the consent of the foreign spouse or judicial authorization? VII. Regarding the restrictions on the registration of the certificate of the judiciary approval of the regulatory agreement ex Article 90 of the Civil Code and the requirement of a public deed to register the agreements that spouses make on private property when they grant this agreement. The General Directorate of Legal Security and Public Faith rejects the registration of certain agreements when they are included in the agreement regulating separation or divorce, insofar as they concern privative property of the spouses and are not limited to liquidating the existing community property between them before their marital crisis (Article 90§e). It is based on a largely literal or literalist interpretation of Article 90 of the Civil Code that defines the scope of the regulatory agreement. The mortgage center considers that agreements between spouses that concern privative property should follow a “suitable documentary way” and that therefore they should be the subject of a requirement of public document, without being able to form part of the content of the separate or divorce agreement. This is not the first time that the DGRN considers that there should be a correlation between the form of the document and the nature of the contract in question: the Resolution of November 14, 1998 (RJ 1998, 8496) already wanted to establish the criterion that Judicial, administrative and notarial documents cannot access the land register without distinction, despite the fact that Article 3 of the Mortgage Act, which includes the principle of authentic documentation, does not give rise to establishing major differences between them. And this is not the only case of remarkable or excessive formal rigor that the mortgage center imposes, since it reiterates again and again - most recently in the Resolution of June 14, 2023 (B.O.E. 10-7-2023) its criteria regarding the non-registration of the order of judicial approval of a transaction because it is not a sufficient formal title (unless it is caused by a case of marital crisis), requiring notarization of the order (and this despite the fact that the courts are also repeatedly revoking such criterion and remember that a judicial approval order is an authentic document that meets the requirements of Article 3 of the Mortgage Act). But, certainly, the judicially approved agreement meets the requirements of an authentic document for the purposes of Article 3 of the Mortgage ACT. Otherwise it would not be registrable in any way. In fact, the Resolution of July 6, 2023 ("BOE" No. 177, of July 26, 2023) relates several rulings of the Supreme Court in which the judicially approved regulatory agreement is declared or presumed registrable. It is not well understood, therefore, why the General Directorate of Legal Security and Public Faith makes this documentary discrimination and impedes the registration of agreements relating to exclusive rights in the agreement, when these agreements may be relevant for the spouses to balance their interests. The question is, what is the criterion of the General Directorate of Legal Security and Public Faith based on the “correlation” between act or contract and form, and “suitable documentary way” to access the Property Registry? Does it arise, or is it supported, by Article 3 of the Mortgage Act or by the Civil Code? It does not seem. Of course, it is logical to exclude from the scope of the regulatory agreement assets belonging to other people (for example, the parents of spouses who allow the use of an apartment they own so that the family of one of their children can convert it into a family home). Or —considering that the only parties with legal standing to grant an agreement of Article 90 of the Civil Code are the spouses - donations to third parties who are not parties (in favor of the children of the marriage), or transfers to third parties (assignments of assets in payment made by the joint community of spouses to creditors who claim community debts). These exclusions seem truly founded on the nature of the agreement, but is an act of disposition of private property aimed at satisfying the interest of one of the spouses after the breakdown of the marriage not suitable for the agreement or for registration? This restrictive criterion can thwart or restrain the usefulness of regulatory agreements. The inconsistency of the DGRN's criteria increases when it is confirmed that this mortgage center has admitted the registration of the agreements on privative property subject to a regulatory agreement, when the matrimonial regime is not the community property but a legal regime of separation of property, like the Catalan or Balearic ones. This happens in the cases of the Resolutions of December 5, 2012 (BOE 04.01.2013) - which allows the registration of an adjudication of a parking space owned by the former spouses in half and undividedly, without a public deed, with the judicially approved divorce regulatory agreement—; the Resolution of October 29, 2008 (BOE 19.11.2008) —where it sees apparently essential differences between the Roman community of property and that which arises through the application of a legal separation regime (the causa familiae)—; or the Resolution of January 21, 2006 (BOE of March 9, 2006). In short, the nature and purpose of the institute of the regulatory agreement seem to demand that within its scope the spouses can enter into all types of agreements on their property, privative or marital, to balance their interests after the marital crisis, with the logical limit that they do not imply to third parties, since in all of them potentially lies the family cause that the DGRN has only deemed in cases of marriage under the marital economic regime of separation of property. VIII. About the habitual residence and its registration. The habitual residence is especially protected by the law as it is not only a familiar home, but also a home in which, in addition to the spouses, common children or those that each spouse would have had before the marriage live. It is necessary to emphasize that the application of the registry principle of specialty of rights in rem must be carried out carefully, since the configuration of the right of use with a family nature results in consequences of a registry nature since the requirements for its registration are not applied as rigorously as if they were would deal, properly speaking, with a real right. The particular consequences that arise such as the dissociation between ownership of the right and the interest protected by it since, on the one hand, the interest protected by the attributed right is taken care of, which in this case is the family interest and facilitating coexistence between children and the spouse to whom custody is attributed, and another factor to consider is the ownership of such right, which is exclusively the spouse in whose favor it is attributed since it is to such spouse to whom the situation is exclusively attributed the power in which the right consists, since the limitation on the disposal of the home with its sole consent is removed. Hence it follows from this that the use attributed to a consort is a right opposable against third parties and, therefore, in the terms established by the given judicial resolution, they shall have access to the Land Register. The consent required for the act of disposition shall be exclusively that of the spouse who is the proprietor of this home or owner the right over it and not the consent of the children. It does not matter the date on which the home was acquired or the right that exists over it and whether it is privative or joint property and, likewise, it does not matter what the matrimonial economic regime is. This includes all acts that involve removing the rights over family housing from common use. With respect to the division of the community on an indivisible home acquired by single couple later married and are now divorced, the DGRN discusses whether, in order to determine whether or not the consent of another person is necessary to dispose of the property, it shall be stated whether it exists or not formalized de facto union of the transferring spouse and, in such case, that the home is not the habitual residence of said union or, directly, this last circumstance. In this regard, it is established that any community member can force the community to be extinguished through the sale of the home through division action, as it is indivisible. And this way of dividing the community should not be subject to the consent given by the spouses of the other owners, nor to the supplementary judicial authorization since this would mean introducing a limitation to the division action, which is a matter of public order and is encouraged and favored by the Legislator. With respect to the nature of the right to use the family home, it is necessary to point out that this is a right of judicial configuration since it is constituted ope sententiae, either if it is agreed upon by the spouses or if there is disagreement between them. Likewise, it is a family right for which certain limitations are established on the provision of housing. It is also considered a non-property right, unrelated to the classification between personal and real rights since this division is a division of rights of a patrimonial nature and the aforementioned right of use is of a purely family nature and does not have a patrimonial nature. It is a right with real significance and the fact that it is not a real right does not mean that it lacks real significance that justifies its registration, since this fact guarantees its general opposability against third parties who acquire it. Another necessary requirement for the use to be registered autonomously is that it be attributed to the spouse who is not the registered owner or who, being the registered owner, is not the only one and, in this case, the use shall encumber the other ownership. The attribution of use in favor of the spouse who is the sole proprietor of the home will not be registrable and the registered use will be cancelable when, subsequently, the proprietor becomes the sole owner of the home, thus producing a confusion of rights. Regarding the power of provisional occupation, we must emphasize that it is conditioned by the pre-existing ownership, that is, the use is conditioned by the previous title that enabled the use of the permanent residence of the marriage, since the judgment cannot attribute ownership different from the one that was held until then on the aforementioned home, nor can it generate a new right, but can only protect the one that the family had until that moment. Likewise, it is a temporary use whose duration will depend on the circumstances that led its constitution. For the registration of the right, it is not essential to specify a period and at this point it is possible to distinguish whether there are children or not, since there are no children, Article 96§3 of the Civil Code establishes that the use of such assets may be agreed for the time that is prudently established. IX. About the arisen inadequacy of Article 92 of the Mortgage Regulation as a registration procedure for real estate acquisitions by foreign spouses, after the entry into force of Regulation (EU) 2016/1103, and its negative effects on the dissemination of the matrimonial property regime of the community property to resident foreigners in Spain. The orientation followed by the Law of the European Union to opt for the law of the State of habitual residence in conflicts of laws and civil matters seems evident. This criterion of Private International Law has traditionally been used to avoid, as far as possible, the existence of differentiated civil law regimes between members of the same society. The criterion of art. 9§2 of the Civil Code is that the matrimonial property regime is governed by personal law (the national law according to art. 9§1) and by virtue of this rule the normal hypothesis has been that the acquisitions of foreign spouses have been qualified (in both senses, law applicable standard and registry regime) in accordance with their national law. Instead, Regulation (EU) 2016/1103 has introduced new criteria. It does not preclude other options, in fact it provides for them, but it establishes as a subsidiary rule the applicable law of the State of the common habitual residence of the spouses, and therefore in practice the first to be taken into account in the very frequent cases that the spouses have not held an agreement on a choice of applicable law or a matrimonial property agreement. If, according to the system of the Civil Code (national law), the ordinary thing is for foreign spouses (even residing in Spain) to acquire according to the matrimonial property regime provided for by their national law, in accordance with the system of the European Regulation, the ordinary thing (provided that it is of marriages celebrated after January 29, 2019) will be that foreign spouses residing in Spain acquire in accordance with the matrimonial property regime provided for by the law of the State in which they reside, which is that of the community property (or, where applicable, the corresponding regional regime). Considering this, we can presume that the number of cases of foreign spouses residing in Spain who will have the community property as a subsidiary matrimonial property regime will substantially increase. And this is essentially due to a reason of UE policy. As well as Article 92 of the Mortgage Regulation may be adjusted (relatively) to the criteria of Article 9§2 of the Civil Code, currently, since one of the guidelines of Regulation (EU) 2016/1103 is the predictability of the matrimonial property regime, this provision does not allow for a satisfactory registry resolution of the issue of the registration of assets under the actually applicable matrimonial property regime; on the contrary, it can be said that it does not favor the predictability of the matrimonial property regime, and may even mislead third parties who rely on the land register, or facilitate subsequent complications, the of trying to find out much later what the matrimonial property regime was under which foreign spouses residing in Spain acquired a property located in Spain. If we understand by error in the law the wrong conviction of what is the rule by which a legal transaction is governed, Article 92 of the Mortgage Regulation and the praxis that it induces are an appropriate channel to facilitate it. If the foreign spouses residing in Spain (especially if only one of them acts) are convinced that their matrimonial property regime is regulated by their national law and when acquiring a property they express this accordingly, with Article 92 of the Mortgage Regulation in force, in the first place, nothing demands that the (really) applicable law be set by some means admissible in Law not different from that which is going to be used when selling it later (with the disadvantage that time will help to blur the antecedents that determined the applicable law); secondly, nothing prevents that, by virtue of the statement made by the purchaser, a marital economic regime that is not the one that corresponds according to the law applicable becomes part of the registration, with distortion of the registry information that third parties will rely on later. This anomaly will be especially serious when the foreign and resident purchaser states that his/her matrimonial property regime is that of his national law and this determines a regime of separation of assets. If it turns out that the applicable law was that of his place of common residence with his consort, that is, that of the State of residence, and probably the regime of the community property, an erroneous legal appearance is favored that having acquired privately. A legal error will be officially published. And this happens because the law applicable to the matrimonial property regime was not determined when it was preferable to determine it, that is, at the time of the acquisition, and not later. The current reality in Spain is very different from what the led to the wording of Article 92 of the Mortgage Regulation in 1982. Foreign regimes are not unknown in legal traffic and their main elements can often be known through the e-Justice portal. Therefore, we defend that art. 92 of the Mortgage Regulation must be reformed to approximate the regime of Articles 90 or 93 and that at the time of the acquisition the economic matrimonial regime to which the acquisition is subject and the nature of the property are set.