The steps to follow to leave the marital home. By Julien Gueguen-Caroll, Lawyer.
In principle, the abandonment of the marital home constitutes a fault that can be retained during a divorce. This abandonment constitutes a serious violation of the duties of marriage when it is intentional. However, the fact of leaving the marital home does not necessarily constitute a fault: it will be necessary to assess the circumstances which caused this departure. Indeed, this abandonment can be justified by legitimate reasons if the common conditions of residence are unsustainable, if there is violence, if the behavior of the spouse is outrageous, because of these professional obligations or his state of health.
Moreover, leaving the marital home is not necessarily final. It is common for one of the two spouses to wish to leave the home in order to ease tensions when there are many conflicts. It will be necessary to warn the remaining spouse and possibly relatives who can testify in the event of litigation on the subject thereafter. It is also recommended to file a handbook at the police station: this has no legal value since it is a simple declaration but it may constitute the beginning of proof and will be useful in divorce proceedings. It is therefore very important to take the necessary steps so that this departure is not considered as a violation of the duty of cohabitation.
If the conflict persists, it will therefore be necessary to consider arrangements for permanently leaving the marital home with a view to divorce.
Definitely leaving the marital home
As we have seen, in the presence of exceptional circumstances, the fact of leaving the marital home may constitute a fault, therefore justifying the pronouncement of the divorce at the exclusive fault of the offending spouse. The judge will therefore have to verify whether there are no exceptional circumstances justifying this abandonment of the home. Article 242 therefore provides on this subject that « Can be requested by one of the spouses when the facts constituting a serious or renewed violation of the duties and obligations of marriage are attributable to his spouse and make the maintenance of common life intolerable ». Conversely, if the departure from the home is the result of a fault in a difficult marital situation, the fault can be attributed to the spouse who remains in the sense that his behavior is the cause of the departure of his spouse.
We can take the example of a spouse who is victims of violence or whose behavior presents a real danger to the other:
The husband concerned must have the violence noted by a medical body (hospital emergencies, service of medico-legal units, etc.) and obtain a medical certificate detailing the injuries.
It will then be necessary to file a complaint with the police station in order to indicate the existence of violence and thus justify leaving the marital home.
Finally, it will be recommended to subsequently initiate a contentious divorce procedure with the family court judge so that the latter, during the conciliation hearing, orders the separate residence of the spouses.
It is very important to carry out these steps because this can have significant consequences, particularly with regard to children. For example, trial judges tend to award custody of the children to the spouse who has remained in the marital home. As for housing, the spouse who leaves the marital home may almost systematically lose all rights of enjoyment over the common good. It should also be noted that, when it comes to a rental, the fact of leaving the matrimonial home does not constitute an obstacle to the solidarity of the spouses concerning the payment of rents.
Leaving the marital home during divorce proceedings by mutual consent
The principle is that the judge is the only one competent to authorize spouses to reside separately. However, it is possible that the spouses, in the context of divorce proceedings by mutual consent, sign an “amicable separation pact”. This document then transcribes the common will of the spouses to no longer reside together and that as a result, one of them leaves the marital home. This document has no legal value, it is simply a document which allows the other spouse to assert a prior agreement in the event of a change in procedure towards a conflictual divorce. The 2nd civil chamber of the Court of Cassation, on the occasion of a judgment rendered on April 22, 1997, also ruled in this direction, recalling that the signing of an amicable separation pact does not free the spouses from the legal obligation of joint residence.
As the procedure for divorce by mutual consent is more flexible, the spouse who has left the marital home will not be required to invoke exceptional circumstances. Indeed, certain jurisdictions such as the high courts of Paris, Créteil or Versailles even require spouses to provide two different addresses under penalty of seeing their hearing postponed to a later date. In practice, judges therefore ask that the spouses are already separated and that they have two separate domiciles in order to prove their real intention to divorce.
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