This paper addresses one of the most controversial issues in cross-border practice when it comes to couple’s breakout: the attribution of the use or destination of the family home. The classification of this essential aspect of the couple’s lives can fall in the material scope of the different legal instruments and conventional texts on family property law. This characterisation is decisive to identify the specific PIL sources. in the European union context, two instruments are in the spectrum: the recitals of Regulations 2016/1103 and 2016/1104 provide with the possibility of including the use of the family home within the autonomous concept of property regime. However, this assertion may prove not to be peaceful or, at least, automatic, depending on the specific factors involved in each case. Likewise, this cannot be extrapolated to unregistered partnerships’ cases, which fall outside the subjective scope of application of Regulation 2016/1104. Therefore, this issue remains open to the differing approaches that legal operators may take to determine the applicable PIL system, with the consequent and undesirable loss of legal certainty. This paper tries to present the different scenarios that could arise in practice to carry out the operation of localisation of the PIL system, as well as to propose solutions that, based on the instruments in force, guarantee, as much as possible, a unified approach that contributes to the desired objective of legal certainty and predictability.
This paper addresses one of the most controversial issues in cross-border practice when it comes to couple’s breakout: the attribution of the use or destination of the family home. The classification of this essential aspect of the couple's lives can fall in the material scope of the different legal instruments and conventional texts on family property law. This characterisation is decisive to identify the specific PIL sources. in the European union context, two instruments are in the spectrum: the recitals of Regulations 2016/1103 and 2016/1104 provide with the possibility of including the use of the family home within the autonomous concept of property regime. However, this assertion may prove not to be peaceful or, at least, automatic, depending on the specific factors involved in each case. Likewise, this cannot be extrapolated to unregistered partnerships' cases, which fall outside the subjective scope of application of Regulation 2016/1104. Therefore, this issue remains open to the differing approaches that legal operators may take to determine the applicable PIL system, with the consequent and undesirable loss of legal certainty. This paper tries to present the different scenarios that could arise in practice to carry out the operation of localisation of the PIL system, as well as to propose solutions that, based on the instruments in force, guarantee, as much as possible, a unified approach that contributes to the desired objective of legal certainty and predictability.