Divorce and cohabitation: Abandonment of the conjugal domicile

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Divorce and cohabitation: Abandonment of the conjugal domicile

The spouses have a duty of cohabitation throughout their union (Article 215 of the Civil Code), which means that they must live under the same roof. This duty also applies during divorce proceedings by mutual consent. As long as the divorce is not pronounced, the spouses cannot leave the marital home, under penalty that this abandonment is considered as a fault and therefore sanctioned.

However, two cases allow leaving the marital home without risk of being accused of misconduct.

Case n ° 1: The emergency situation

Living together can become difficult and complicated in the event of a divorce, even when the procedure is carried out by mutual consent. The fact that one of the spouses refuses to cohabit with the other is not rare and it happens that a departure is made on a whim for X or Y reason. Note that only the judges can authorize you to leave the marital home after studying your situation and that within a very specific framework.

To obtain permission to leave the marital home without fault, you must be in an emergency situation, i.e. you must prove that your spouse is a danger to you and / or your children. Verbal or physical violence (assault and battery), mistreatment, threats, etc. are considered to be emergencies.

The facts that you reproach your spouse (e) must be noted by the medical profession (doctor, hospitals) and a certificate. You must also report them by filing a handbook at the police station and by entering a judge through your lawyer.

Usually, this type of situation does not occur during a divorce proceeding by mutual consent, but it is not to be excluded completely. Such a remedy would have the consequence of transforming the type of divorce. It would no longer be by mutual consent but contentious.

Case n ° 2: The agreement between the spouses

Apart from these emergency cases, you will have to live with your spouse until the end of the divorce proceedings.

In the context of divorce proceedings by mutual consent, be aware that it is possible to leave the marital home after agreement with your spouse. You can sign an “amicable separation pact” in the presence of your lawyer. This document is subject to validation by the judge.

Once the document has been validated by the judge, the spouse who wishes to leave the marital home can do so legally.

To remember

Never be impulsive! Before making a decision in divorce proceedings, whether amicable or not, consult your lawyer. The “I didn’t think” or the “I didn’t know” has no legal value. Only your lawyer will know how to tell you what to do and how to protect you from a legal standpoint.

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