Lawyer Reveals Legal Tips for Leaving a Shared Home!

One of the commitments of marriage is cohabitation. Article 215 of the Civil Code mandates that “spouses are mutually obligated to a community of life.” Therefore, leaving the marital home is seen as a breach of this duty, which can be grounds for a fault-based divorce. Legally, only a judge can permit a spouse to leave without it being considered abandonment of the marital home.

When filing for divorce, it is possible to request temporary measures concerning residency from the court. One must then wait for the orientation hearing so that the judge can issue an order allowing these temporary measures to be implemented. “Permission to leave the marital home is always granted; there is no debate about that,” assures Karine De Luca, a family law attorney and founder of the podcast “Let’s Talk Divorce with Karine.” However, the time to get a hearing can vary from a few months to over a year, depending on the jurisdiction. This procedure does not apply to mutual consent divorces, where spouses agree on all terms, including residential arrangements. For unmarried couples, there is no legal obligation to live together, so they can decide to leave at any time.

What are the risks of leaving without permission?

Choosing to leave the marital home without waiting for the judge’s approval exposes one to the risk of a fault-based divorce proceeding. “These procedures are restrictive and expensive,” Karine De Luca notes, “They are rarely initiated, especially for this reason. And even when they do proceed, abandonment does not lead to financial consequences.” Since the law of May 26, 2004, the faults of the spouses are no longer considered in awarding certain rights, such as compensatory payments (a sum intended to offset the loss of standard of living). “Even if deemed at fault, one will still receive the money that is due,” confirms Karine De Luca.

Well-being Comes First

While abandoning the marital home can lead to legal penalties, it’s crucial to weigh these risks against the need for self-protection. For Karine De Luca, this legal obligation should not trap suffering couples. “What seems most important to me is physical and psychological safety. When one of the spouses needs to leave quickly, they may decide that their well-being takes precedence over the fear of being faulted.” She recommends seeking the assistance of a lawyer, a CIDFF (Information Center on the Rights of Women and Families), or a social service assistant: “These are times of great vulnerability where one might struggle to make decisions. Having external help can help more clearly assess the risks and benefits of leaving.” In cases of domestic violence, it is possible to leave one’s home immediately. It is advised to file a complaint and urgently request a protection order from the family affairs judge. In this situation, the abandonment of the home cannot be considered a fault.

When a married couple has children, another factor comes into play: joint parental authority. Thus, it is not possible to take the children without the other parent’s consent. In case of disagreement, it’s necessary to seek temporary measures from the judge again: “We ask, firstly, for permission to leave and, secondly, for the children to live either in alternating custody or with one parent or the other,” explains Karine De Luca. If this procedure is not followed, the parent who unilaterally decides to move with the children can be accused of violating the other parent’s rights. This could lead to penalties, particularly concerning custody.