Is it a crime to damage the marital home after divorce in Spain?

Yes: breaking or damaging a home held as community property after a break-up can amount to criminal damage even when the person responsible is also its owner. Until the marital community is wound up, the house and its contents are not theirs alone, and whatever they destroy also belongs to their ex. A court in Vigo ruled this way in a judgment of September 2026, and its reasoning matters to any couple who divorce with the house still undivided, including on the Costa del Sol.

What did the court in Vigo decide?

The couple married in 1998 under the community-property regime, known in Spain as gananciales, and divorced in July 2024. Their divorce settlement shared out the use of the house and its contents in six-month turns and left the division of the marital assets for later. In February 2026, during the ex-husband’s turn, the ex-wife turned up at the house at night and lashed out at the front door, the shutter of a ground-floor window, a garden lantern and an outdoor chair, damaging several of them.

The ex-husband reported her and produced video recordings, photographs of the damage and a repair quote of €496.10 including VAT. The public prosecutor asked for an acquittal, but he pressed the charge as private prosecutor; she did not attend the trial, which went ahead in her absence. The judge convicted her of a minor offence of criminal damage and imposed a one-month fine at €5 a day (€150), the legal costs and €496.10 in compensation payable to the marital community, not to her ex. The judgment, dated 9 September, was not final: it could be appealed.

Why can shared property count as someone else’s?

Article 263 of the Spanish Criminal Code punishes anyone who damages property belonging to someone else, and the question was obvious: how can something that is also yours belong to someone else? The judge relied on the approach now taken by most provincial courts: both spouses own all community property equally, so whoever destroys part of it infringes the other’s property rights, because those assets are not theirs alone.

It also cites Supreme Court case law (STS 1013/2005 of 7 November), under which the marital community itself owns the assets and the spouses are treated as third parties to it. The question is not fully settled: for years some provincial courts acquitted on the grounds that the property did not belong to someone else, and for ordinary co-ownership the courts still lack a uniform approach. For community property, though, the trend is clear.

When is it a crime, and when do you only pay for the damage?

It depends above all on where the couple stand. Article 268 of the Criminal Code exempts spouses from punishment for property offences against each other, provided they are not legally or de facto separated, nor in the middle of a separation, divorce or annulment, and there is no violence or intimidation. Once the couple have split up, that protection disappears:

Criminal fines in Spain use a day-fine system: the judge sets the duration and a daily amount of between €2 and €400 according to the offender’s financial situation. If the fine is not paid, every two unpaid daily amounts equal one day of deprivation of liberty.

What can each of you do with the house until the assets are divided?

Divorce dissolves the marital community (article 1392 of the Civil Code), but the house still belongs to both of you until the assets are divided. In the meantime a few basic rules apply:

• Selling or mortgaging it requires both signatures.
• If the use of the family home was awarded to one of you, that restriction is entered in the Land Registry and the house cannot be sold without the consent of both of you or a court’s authorisation (article 96.3 of the Civil Code).
• Whoever does not have the use at the time must respect it: being a co-owner does not entitle you to walk in without permission or to remove or break what is inside.
• If you cannot agree on the division, either of you can ask the court to divide the assets: an inventory is drawn up first and, if there is still no agreement, a court-appointed expert divides the assets (articles 806 to 810 of the Civil Procedure Act).
• The law sets no deadline for the division, and the right to ask for jointly owned property to be divided never expires (article 1965 of the Civil Code): without an agreement or a claim, the situation can drag on for years, as it did in the Vigo case.

The practical step is to record the condition of the home and its contents when its use is shared out: dated photographs, an inventory signed by both of you or, if relations are poor, a notarial record. If a dispute arises, that is what proves what was intact and what was not.

What if you are a foreign couple or have separate property?

On the Costa del Sol many owners are not married under community property. Their regime depends on the law that governs their marriage, which is not always Spanish law: for weddings held on or after 29 January 2019 the EU Regulation 2016/1103 applies, and for earlier ones, as a rule, the spouses’ common national law when they married (article 9.2 of the Civil Code). It is common, for example, for a foreign couple to buy their home in equal shares, as co-owners.

In that case there is no marital community to wind up, just ordinary co-ownership. Nobody is obliged to remain in it (article 400 of the Civil Code) and, if you cannot agree that one of you keeps the house and compensates the other, it is sold and the price shared (article 404). On the criminal side, as the judgment itself notes, the courts have not been unanimous on whether damaging a co-owned thing means damaging someone else’s property, but that is no safe harbour either: the sensible course is to treat the home as if it belonged to someone else.

How much is at stake on the Costa del Sol?

In a divorce the home is usually the most valuable asset, and even more so on the Costa del Sol. The table shows the median asking price of the homes for sale in our portfolio in October 2026 and half of that figure: a guide to what whoever wants to keep the house would have to pay the other, before deducting any outstanding mortgage.

With figures like these, far more is at stake in the division than a door or a lantern: a badly handled split can cost tens of thousands of euros. An up-to-date, independent valuation helps settle the compensation without arguing over every number.

In short: how to protect the home during a divorce

Until the assets are divided, a community-property home belongs to both of you and the law protects it against either of you. The sensible course is to agree as early as possible who keeps the house or to sell it, to record its condition and not to touch anything that is not exclusively yours. If you are going through this with a home on the Costa del Sol, our team can prepare a market valuation to serve as the basis for the agreement or handle the sale with both signatures.

This article is for general information only and is not a substitute for a lawyer’s advice on your specific case.

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