What the court decided
In judgment 646/2026 of 27 May (cassation appeal 6833/2024, ECLI:ES:TS:2026:2339), the Spanish Supreme Court allows the taxpayer's appeal and holds that, in cases of separation, divorce or annulment where one spouse ceases to occupy the main residence, the requirement of actual occupation of the main residence at the time of the disposal or on any day within the preceding two years, imposed by article 41 bis.3 of the Income Tax Regulations, is to be regarded as satisfied where that situation applies to the spouse who remained in the property.
Background and prior doctrine
Article 38.1 of Spanish Income Tax Act 35/2006 exempts the capital gain arising on the disposal of a main residence where the proceeds are reinvested in another main residence. Article 41 bis of the Regulations adds a requirement of actual occupation at the time of the disposal or at some point in the preceding two years. In the case decided, a taxpayer had been required by a court order arising from his divorce to leave the family home; years later he disposed of his share and reinvested the proceeds in a new main residence. The tax authorities refused the relief precisely because he no longer occupied the property sold, and the court below upheld that refusal.
Why the court reached that conclusion
The Chamber relies on two strands. The first is the conceptual unity of the income tax rules: the body of provisions governing the main residence already contemplates elsewhere that a spouse may cease to occupy the property because of separation or divorce, so the occupation requirement in article 41 bis.3 cannot be read as though that situation did not exist. The second is equality before the law: if, on the sale of the same property, on the same date, one former spouse can claim the relief and the other cannot solely because a court order required him to leave the home, the resulting difference in treatment lacks objective justification under articles 14 and 31.1 of the Constitution. The purpose of the relief — to facilitate replacing one's main residence — is equally served when the departing spouse reinvests in a new home.
Practical points
- Reinvestment must take place within the two years before or after the date of the disposal; it is a short window and should be diarised before signing.
- If the full amount received is not reinvested, the relief is partial and applies in proportion to the sum reinvested.
- Keep the judgment or settlement agreement evidencing the departure from the home, the municipal registration of the spouse who stayed, and the deeds of sale and purchase.
- Selling your own share to the former spouse is a disposal for income tax purposes and can qualify for the relief on the same terms.
- If the return has already been filed and the tax paid, a request to rectify the self-assessment may be available while the tax year is not time-barred.
- Taxpayers over 65 benefit from a separate exemption on the gain from their main residence with no reinvestment requirement; the two routes should be compared.
When this may be relevant to your matter
This is a very common situation among people who divorced years ago in Santander and across Cantabria and are only now selling what used to be the family home, or buying out the other spouse's share. It is also frequent among non-resident and international clients with property in Spain, for whom the tax outcome is often discovered only after signing. This doctrine makes it possible to plan the transaction with certainty: if you left the home because of the divorce and your former spouse continued to live there, the rollover relief remains available, provided you reinvest in time and can evidence it. We advise on these matters in English.
If you need advice on a matter of this kind, you can see how the firm works on our page for Family lawyers in Santander.