Article 51 of the Political Constitution of our country mentions that “the family, as a natural and fundamental element of society, has the right to special protection from the State.” Also, Article 65 of that same regulation indicates that “the State will promote the construction of popular housing and will create the family assets of the worker”, as the affectation of family assets in Costa Rica.

As indicated by our Constitution, the State is obliged to protect the family, as well as its patrimony. In this case, the affectation to the family assets refers to real estate that is used as the family’s residence, which can be urban or rural.

The affectation to family assets can only be constituted by the owner of the property and said affectation must be made in a public deed, which must be registered in the National Registry. The beneficiaries of this affectation are the spouse, the minor children, ascendants and the common-law partner. It is not strictly necessary that the beneficiaries live with the owner of the property, however, the beneficiaries must necessarily inhabit the affected property and must have a dependent situation, in relation to the property’s registered owner.

Article 46 of the Family Code mentions that the property affected by the family may not be greater than one thousand square meters (in urban areas) and ten thousand square meters (in rural areas). The property may not be alienated or encumbered (sale, donation, mortgage, etc.) without the consent of both spouses or common law partners and without prior demonstration in a process of diligence of utility and necessity.

The property affected by the family asset regime may not be prosecuted by personal creditors of the person who owns the property, unless the debts have been contracted by both spouses, or by the owner prior to the registration of the affectation.

The affectation to the property can be extinguished or terminated at any time, this according to article 47 of the Family Code, which mentions the following reasons:

• Mutual agreement of the spouses or common law partners.
• Death or majority of the beneficiaries.
• By judicially declared separation or divorce. In this case, the continuation of the affectation can be arranged, as long as there are beneficiaries with the right.
• By judicial disposition, at the request of the owner, once the process has been filed and the utility and necessity of the affectation has been verified.
• When, in fact, the property ceases to serve as a family property or small farm, after verification by the Court.

The main objective of the affectation is the protection of the family’s assets, that the family always has a place to live, without having to worry about disposals by an irresponsible owner or any type of debt lien.

If you require advice on this or any other topic regarding Family Law, at ERP Lawyers we put at your disposal our specialized team. Do not hesitate to contact us!