A major cause of divorce, abandonment of the marital home occurs when one spouse leaves the family residence, with or without a judge’s approval, in a crisis situation. According to the law, marriage implies a shared life. Therefore, should abandoning the marital home be considered grounds for divorce? Is a judge’s approval required?
Principle of abandonment of the marital home
The wrongful nature of abandoning the marital home
When spouses marry, they mutually commit to a shared life. This means they are obligated to reside under the same roof in a home they choose together. Therefore, abandoning the marital home can, in principle, constitute grounds for divorce.
It should be noted that the wrongful nature of abandoning the marital home can be aggravated if this abandonment is abrupt and carried out without warning or explanation to the spouse.
Note : In the case of a rental, the spouse leaving the home normally remains jointly liable for the rent and charges. The Elan law of November 23, 2018, put an end to this joint liability in cases of physical and psychological coercion.
The exceptions to the principle
Abandoning the marital home constitutes a fault that can justify the pronouncement of a divorce at the exclusive fault of the guilty spouse.
However, leaving the marital home without a judge’s authorization does not necessarily constitute misconduct. Divorce “may be sought by one spouse when acts constituting a serious and repeated breach of the duties and obligations of marriage are attributable to the other spouse and make the continuation of married life intolerable” (Article 242 of the Civil Code).
Therefore, if the abandonment of the marital home is a consequence of recurring physical and moral violence, or if there is a real danger to the spouse and children of the couple, the fault may be attributed to the spouse who remains .
In this scenario, it is then inevitable to initiate contested divorce proceedings with the family court judge of the regional court, who will order the spouses to live separately.
Protection of the law
In the event of a criminal offense committed against the spouse and/or children of the couple, the victim may contact the public prosecutor. The magistrate may then request the following against the perpetrator:
to reside outside the marital home,
to refrain from appearing near the family home,
medical and even psychological support.
Article D32-29 of the Code of Criminal Procedure adds a prohibition on meeting the victim, entering into contact with her, or residing with her, even if it is the home of the couple and the family.
Abandonment of the marital home during a divorce proceeding without a judge
In the absence of a judge, Article 215 of the Civil Code terminates the divorce proceedings upon the spouses’ divorce, that is, when the divorce agreement between them takes effect. Thus, the exact moment when either spouse can leave the marital home depends on when the divorce takes effect.
Under the new procedure, the spouses, having legally observed a 15-day reflection period from the date of receipt of the agreement by registered mail with return receipt requested, sign a divorce agreement in the presence of their respective lawyers.
However, the shared life between the spouses ends when the agreement becomes legally binding, that is, when the notary files it in their records.
In practice, the spouses are already living separately when they initiate divorce proceedings by mutual consent. It may then be advisable to formalize a “separation agreement” before a notary, which records the spouses’ shared intention to no longer live together in the family home. While this agreement has no legal standing, it simply serves as a pre-established document, in case one of the spouses considers initiating legal proceedings.
Procedure to follow
In the event of a marital crisis, living together can sometimes justify leaving the marital home. However, while it is legally possible to leave to ease tensions and protect oneself, it is wise to take certain steps to prevent further difficulties in the future.
In advance, you must inform your spouse of your departure, and obtain written statements and attestations (from friends, family, work colleagues) specifying and explaining the circumstances of leaving the marital home.
In the event of temporary abandonment of the marital home
When a couple faces numerous conflicts, one partner may wish to leave the family home to ease tensions. In this case, it is necessary to inform the remaining spouse, as well as close relatives (family, friends), in order to obtain statements that are essential for any potential divorce proceedings.
Furthermore, it is important for the departing spouse to file a in cases of domestic violence. This step is essential to ensure that the departure cannot be considered a violation of the legal duty of cohabitation during divorce proceedings.
In the event of permanent abandonment of the marital home
If leaving the marital home is due to physical or psychological abuse, the first step for the victimized spouse is to have the abuse documented at a hospital emergency room and obtain a medical certificate detailing the injuries. Next, a complaint must be filed with the police station to officially record the abuse and thus justify leaving the marital home.
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