Abandonment of the Family – Matrimonial Home
The abandonment of the family or matrimonial home is one of the most serious issues that arise in family disputes between spouses. In this article, we examine what abandonment of the matrimonial home means, its legal significance, and the consequences it may have in the context of divorce, child custody, maintenance (for spouse and children), use of the family home and even whether it may give rise to a claim for moral damages. We also provide practical guidance for spouses who find themselves in such a situation.
Definition of abandonment of the matrimonial home
Abandonment of the matrimonial home is considered to be the permanent termination of married cohabitation by one (or both) of the spouses, without a reasonable cause. Put simply, it is the case where one spouse leaves the common home without any justified serious reason and with the intention not to continue to fulfil their marital obligations. In legal practice, various forms of abandonment have been recognised, such as:
- Physical departure from the matrimonial residence and establishment elsewhere, without the consent of the other spouse.
- Refusal to move in: when one spouse refuses to relocate to the new common residence chosen by the couple.
- Eviction: when one spouse forces the other out of the home (e.g. by use of violence or intimidation).
- Obstruction of return: changing the lock or taking other steps that prevent the spouse who left from returning, although he or she wishes to do so.
- Psychological abandonment: the spouses remain under the same roof, but one has essentially abandoned the relationship – shows complete indifference, there is no communication or companionship, and they behave like a stranger in the same house.
Importantly, the term “abandonment” is not expressly used as such in the law. The concept, however, derives from the duty of married cohabitation (Article 1386 of the Greek Civil Code) and case law. Departure from the home is not considered abandonment where it takes place for a serious and justified reason beyond the spouse’s control. For example, if a spouse leaves the home because they are subjected to domestic violence or other harmful behaviour by the other spouse, this departure has a reasonable cause and is not legally characterised as “unjustified abandonment”. In such cases, responsibility for the breakdown of cohabitation lies with the spouse whose conduct prompted the other’s departure.
Legal significance of abandonment
Abandonment of the family home constitutes a breach of fundamental marital obligations (cohabitation, loyalty, contribution, etc.) and is of particular legal importance in family law. Although it is not, by itself, an autonomous ground for divorce, it is one of the facts that may establish “serious breakdown” of the marriage.
Under Article 1439 §2 of the Greek Civil Code, serious breakdown – that is, substantial disruption of the marital relationship – is presumed if a specific serious event has occurred, and abandonment is one of these events (together with adultery, bigamy, attempted homicide of the other spouse and violence). This is a rebuttable presumption: this means that if the spouse bringing the action proves that he or she was abandoned by the other spouse without reasonable cause, the court will in principle consider that the marriage has been irretrievably broken down. The defendant (the spouse who left) has the right to rebut this presumption by trying to show that there was no real breakdown or that their departure was not unjustified.
For example, if the departure took place with the consent of the other spouse (perhaps the spouses had agreed to live apart temporarily), there is no abandonment in the legal sense. The consent of the “abandoned” spouse to live separately neutralises the presumption. If, however, both spouses have moved away mutually (e.g. they agree to live separately in different homes without a formal agreement), this is considered mutual abandonment and, in practice, either of them could invoke the breakdown against the other.
It should be noted that, in the past, the legislation (before 1983) required “malicious abandonment” continuing for a specific period of time (e.g. two years) as a ground for divorce. Today, no such time-limit exists: even a shorter period of separation may amount to abandonment if it is found to have taken place without justification and with the intention of permanently breaking off cohabitation. The length of time is a relative factor – the court will assess the circumstances in each case.
Consequences for divorce (fault-based breakdown of marital cohabitation)
Where there is abandonment of the matrimonial home, in practice we are dealing with a fault-based breakdown of marital cohabitation: the spouse who unjustifiably abandoned the home is considered responsible for the breakdown of the marriage. This facilitates the route to a contested divorce. The spouse who was abandoned may file an action for divorce invoking serious breakdown due to abandonment. The divorce process becomes quicker and more straightforward in such cases, since it is sufficient to prove the abandonment – there is no need to prove other facts rendering cohabitation impossible.
The divorce that will be granted is based on the serious breakdown of the marriage, which is presumed due to abandonment. In practical terms, this means that the court’s decision will probably state that the marriage is dissolved due to the fault of the abandoning spouse. However, it must be clarified that, following the reform of family law, the notion of “fault” does not affect the very dissolution of the marriage – in other words, there is no “penalty” or obstacle preventing even the spouse at fault from obtaining a divorce. The divorce will be granted in any event, once the breakdown is proven. Fault plays a role mainly in ancillary issues (as we shall see in relation to spousal maintenance), and not in whether the marriage will be dissolved or not.
It is worth noting that, in most cases, the spouse who decides to leave the home is aware that he or she will likely be regarded as “at fault” for the divorce. Usually, however, when someone reaches the point of leaving for good, they do so because they want to terminate the marriage. Thus, whether the divorce is formally granted “at their expense” seldom concerns them. The main consequence is that the other spouse may immediately initiate divorce proceedings without needing to wait (for instance, no two-year separation is required, since there is the specific event of abandonment). In any event, the end result is the dissolution of the marriage – something which the abandoning spouse usually wished for in any case.
Consequences for child custody and maintenance
Child custody:
A key question is how abandonment affects the allocation of custody of the children in the event of divorce. Under Greek law, the fact that one parent decided to leave the home is not assessed in isolation as a factor for custody. Courts decide on custody based exclusively on the best interests of the child (physical, psychological, moral, etc.), regardless of who is responsible for the divorce. This means that, in principle, a parent who abandoned the matrimonial home does not automatically lose the right to custody as a form of “punishment”.
In practice, however, abandonment may have an indirect impact. If a parent abandons not only the spouse but also the children (i.e. leaves and abandons the minors with the other parent without caring for them), this will certainly be taken into account by the court. Long-term or multi-year absence of a parent from the children’s day-to-day life may create a new status quo: the parent who remains with the children becomes their primary carer and a strong emotional bond is formed. In such cases, the court may find that it is in the children’s best interests to continue living with the parent who has been caring for them steadily. For example, there have been decisions where the mother lost custody in favour of the father because she had lived abroad for a long period, leaving the child with the father, with the result that the child developed a stronger bond with him.
On the other hand, if the departure of the parent from the matrimonial home did not entail abandonment of the children (e.g. the parent continued to see them regularly, to participate in their upbringing or took them to live with him/her), then the decision to leave the common home does not render that parent unfit. The court will consider which parent can better secure the child’s welfare. Under modern conditions, and in light of the new Law 4800/2021 on joint parental responsibility, there is a tendency towards shared upbringing where feasible. In conclusion, abandonment of the spouse should not be confused with abandonment of the children: if a parent remains loving and capable towards the child, the fact that the marital relationship ended for reasons between the spouses does not, by itself, justify depriving that parent of custody. Each case is assessed individually, having regard to the stability each parent offers, their relationship with the child and the practical circumstances.
Spousal maintenance:
The notion of fault plays a clear role in maintenance between spouses. Here we must distinguish two stages: (A) maintenance during separation (i.e. while the spouses live apart but before the divorce is granted) and (B) maintenance after the divorce.
- During separation: Under Article 1391 of the Civil Code, when cohabitation ceases, the economically weaker spouse is entitled to maintenance from the other, provided that the separation occurred for a reasonable cause on their part. If the spouse who left had a reasonable cause (e.g. left to protect their health or dignity due to the other spouse’s conduct), they are entitled to claim maintenance from the other spouse, payable monthly in advance, so that they can continue to cover their needs as when they were living together. If, however, the spouse who left is themselves at fault for the separation (i.e. left without justification), then: (a) they have no right to claim maintenance for themselves, even if under other circumstances they would be entitled to it (for instance even if they are destitute, the law does not protect them because it considers that they caused the separation themselves); and (b) they may be ordered to pay maintenance to the other spouse (the abandoned spouse), provided the latter is in financial need. In other words, a spouse who unjustifiably abandons the home loses the right to be supported by the other spouse and may, conversely, be required to support the abandoned spouse if the latter lacks sufficient income.
- After divorce: Once the marriage is dissolved, the mutual obligations between the spouses are modified. Post-divorce maintenance is governed by Articles 1442 et seq. of the Civil Code. As a rule, a former spouse may claim maintenance from the other only under specific conditions, mainly if they are unable to work due to age or health, if they care for a minor child, if they cannot immediately find work after the divorce (with a time limit of up to 3 years) or for reasons of equity. Unlike maintenance during separation, here fault for the divorce is not formally a condition: even the “at-fault” divorced spouse may be entitled to maintenance if they meet the statutory requirements (for example an elderly spouse without resources). In practice, however, courts tend to be reluctant in cases where the applicant was solely responsible for the divorce. For instance, a spouse who abandoned the family and is able to work will rarely be treated favourably so as to receive money from their former spouse. Courts may, at times, reduce the amount or the duration of maintenance that would otherwise be awarded, taking into account the applicant’s conduct. Generally, we can say that abandonment indirectly affects post-divorce maintenance: the abandoning spouse will typically not be favoured in a maintenance claim, whereas the abandoned spouse is in a stronger position to seek financial support if needed.
Child maintenance:
Irrespective of disputes between the spouses, obligations towards the children remain. The parent who leaves the home is not relieved of their obligation to maintain the minor children. If the children stay with the other parent, the abandoning parent must pay appropriate child maintenance each month to cover their needs. The amount of maintenance is calculated on the basis of the children’s needs and the financial means of the liable parent – the cause of the divorce is irrelevant to the amount payable. Conversely, if the departing spouse takes the children and cares for them, that parent may claim maintenance for the children from the other parent. In all cases, parental responsibility and financial obligations towards the children are not affected by which spouse was “at fault” for the divorce: both parents must support their children according to their means.
Use of the family home after departure
A practical issue that arises immediately once a spouse leaves is what happens to the family home. The family home was the couple’s common residence during the marriage, and its use is governed by special rules when the spouses are separated. As long as the marriage lasts, both spouses have the right to reside in the home, even if it belongs only to one of them – this is a “family right” of cohabitation. Once separation occurs, however, it must be determined who will remain in the home or whether it will continue to be shared (something rarely viable in high-conflict situations).
If the departure was amicable or by mutual agreement, the spouses may agree between themselves that one of them will continue to live in the home (usually the spouse with the children, if any), while the other will move elsewhere. Such an agreement may be oral or in writing and is respected as long as it works for both parties. If there is no agreement and a dispute arises, the matter may be resolved by the court. Under Article 1393 of the Civil Code, the court, upon application, may grant one of the spouses exclusive use of the family residence (in whole or in part), if this is required for reasons of equity, taking into account the spouses’ particular circumstances and the interests of any children. This means that the judge will weigh which spouse has a greater need to remain in the home: for example, if there are minor children already living there, priority is usually given to the parent who has custody, so that the children’s life is not disrupted. The court will also consider which of the two spouses has an alternative housing option.
This decision may be issued either in summary proceedings (interim measures, for urgent or provisional regulation) or in the final divorce judgment. For instance, in a contested divorce the court will also rule on who is to have use of the home until the dissolution of the marriage becomes final. Note: the right to exclusive use does not affect ownership of the property – in other words, the spouse who owns the home does not lose title. It merely means that, temporarily, the other spouse is entitled to live there without being considered a trespasser. This is a special arrangement designed to protect the family residence and, in particular, vulnerable members (e.g. children or the economically weaker spouse) during the transitional period of separation.
In situations of serious conflict, such as when there is an allegation of domestic violence, the court may order the violent spouse to vacate the family residence immediately and may even prohibit them from approaching it. This is a separate protective measure in favour of the victim. Apart from such cases, where a spouse has simply left voluntarily, the other spouse will usually continue to use the home. The spouse who abandoned the home does not have the right to return at will, especially if the other spouse objects – such behaviour could constitute a disturbance of family peace. Agreement or a court decision is required first.
Finally, once the divorce becomes final, the arrangements concerning the family home cease to operate in the same way. The former spouses will either definitively divide their assets (if the home is jointly owned, it may be sold or allocated entirely to one of them with compensation to the other) or, if it belonged exclusively to one spouse, at some point the owner will be able to recover it for their own use. Until then, however, the temporary grant of use offers relief and stability to the spouse who needs it most.
Moral damages and abandonment of the matrimonial home
Many people wonder whether the abandoned spouse can claim compensation for the mental distress, insult and hardship suffered due to the abandonment. In everyday perception, the act of leaving one’s family may be seen as immoral or unfair – but the legal treatment of moral damages (i.e. compensation for emotional suffering, infringement of personality, etc.) in these matters is rather restrictive.
According to the case law of Greek courts, and particularly the Court of Cassation (Areios Pagos), breach of marital duties (such as the duty of fidelity, cohabitation, respect and support) is not, in itself, sufficient to constitute an unlawful act giving rise to a claim for damages. In other words, the fact that a husband or wife violated their marital obligations (left the home, entered into an extramarital relationship, neglected the spouse) does not automatically mean that they committed a “civil wrong” for which the other spouse may seek monetary compensation. The law treats marriage as a relationship that is dissolved through divorce, not as a contract in which breach of terms automatically leads to compensation, except in exceptional circumstances.
For example, it has been held that a wife who was abandoned and cheated on by her husband is not entitled to moral damages solely because of the adultery and abandonment. Even if she suffered from depression or social shame, these are considered consequences of a failed marriage that the law does not compensate in money. The reason is that marital relationships are governed by family law and specific moral values, but they do not fall within the sphere of civil liability unless there is also an independent unlawful act.
When can a claim arise? Only if the behaviour of the abandoning spouse includes elements that go beyond “simple” abandonment and constitute a separate wrongful act. For instance, if abandonment is accompanied by a serious infringement of the other spouse’s personality – such as public humiliation, insults, physical violence, threats or other unlawful acts – the abandoned spouse may base a claim for damages on those unlawful acts. In such a scenario, however, compensation is not awarded “because they left”, but because they caused harm through a specific unlawful course of conduct (e.g. assault or defamation).
In conclusion, moral damages purely for abandonment of the matrimonial home are not recognised by the courts. The pain and sadness associated with divorce are treated as part of each person’s private life. The legal system provides remedies through divorce, maintenance, custody, etc., but not through monetary punishment of the “unfaithful” or “heartless” spouse. Accordingly, the abandoned spouse cannot demand financial compensation merely because the other spouse left for a third person or ended the marriage.
Practical guidance for spouses in cases of abandonment
Are you faced with a situation of abandonment of the family home? Whether you are the spouse thinking of leaving or the spouse who has been left behind, the following practical steps may be useful:
- Consider the legal framework before leaving:
If you feel you cannot cope any longer and need to leave, first seek advice from a family-law lawyer. They will explain the consequences that your departure may have. For example, if you need financial support, it may be preferable to file an application for maintenance, or even a divorce action, before leaving, so that you are not immediately regarded as “at fault” without reasonable cause. - Document the reasonable cause (if any):
If you leave because there is a serious reason (e.g. abuse, serious insults, dangerous situations), make sure to document it. You may report the incident to the police or contact a forensic doctor (in cases of physical violence) so that evidence exists. You may also send an extrajudicial notice to the spouse who remains in the home, stating that you are leaving and the reasons for doing so (e.g. “I am leaving because cohabitation has become intolerable due to your conduct”). This does not guarantee that your act will not be characterised as abandonment, but at least creates a written record of the reasons. - Care for the children:
If there are minor children, give priority to their stability and safety. The departing spouse should explain (in an age-appropriate manner) what is happening and reassure the children that they are not being abandoned. If you are the parent who remains with the children, try to preserve their daily routine as much as possible and avoid transmitting bitterness or fear regarding the other parent. From a legal perspective, promptly consider custody and contact arrangements: if conflict is expected, you may need to seek interim measures so that custody and contact are regulated temporarily, in order to avoid child abduction or long-term absence of one parent from the child’s life. - Financial support:
A spouse who has been abandoned is entitled to seek maintenance both for themselves (if they cannot support themselves) and for the children. Do not hesitate to claim what you are entitled to – the law sides with the economically weaker spouse in such situations. Conversely, the spouse who leaves must continue to meet their obligations towards the family until a new agreement or court decision is in place. It is advisable to keep evidence of any amounts paid or received, and to avoid unilateral actions such as emptying joint accounts or abruptly stopping financial support – such moves create a hostile climate and may expose you legally. - Use of the residence and personal belongings:
If you are the one staying in the home, but the home legally belongs to the other spouse, avoid immediately changing the locks or throwing their belongings out. Although you may feel resentment, the spouse who left is, in principle, entitled to access their personal effects. Arrange for them to collect their belongings calmly. If you fear that they may return uninvited and create tension, discuss with your lawyer the possibility of interim measures for exclusive use of the home. If, on the other hand, you are the one who left and you wish to retrieve your belongings, it is wise to do so in the presence of a third-party witness or even the police (in discreet attendance), in order to avoid arguments or unfounded accusations. - Maintain composure and respect:
However emotionally difficult it may be, try to resolve practical issues as calmly and civilly as possible. Abandonment of the matrimonial home is often accompanied by anger, a sense of betrayal and hurt feelings. However, shouting, threats or acts of revenge may backfire, especially if the matter reaches court – and in any event they harm the parties themselves (and the children). Cooperation on practical issues does not mean that you forgive or forget what has happened; it shows maturity and protects your interests (and those of the children). - Do not neglect your mental health:
For both the departing spouse and the spouse who remains, this period is psychologically painful. Seek support from friends, family or a mental-health professional. Your ability to make sound legal and practical decisions will be strengthened if you look after yourself and remain as calm as possible.
Finally, remember that every case has its own particularities. The law provides a general framework, but its application may differ. Do not rely solely on advice from acquaintances or on what “people say”. Any spouse experiencing such an event should obtain tailored legal advice as soon as possible. An experienced lawyer will guide you responsibly, protect your rights and help you manage the challenges correctly – whether you wish to assert your rights as the abandoned spouse or to move on with your life having left in the proper way. Ultimately, the aim is as smooth a transition as possible to the new reality, with respect for the dignity of all parties and, where there are children, with their welfare as a priority.
Frequently Asked Questions (FAQ)
- What is “abandonment of the matrimonial / family home”?
It is the unjustified, permanent departure of one spouse from the common home (or the eviction of the other), with the intention not to continue married cohabitation. - Is abandonment sufficient for a divorce to be granted?
Yes. It may constitute a serious event evidencing breakdown of the marriage and support an action for divorce, without the need to prove many additional facts. - Does a specific period of time need to pass for there to be abandonment?
No. There is no longer a minimum period (e.g. two years). It is assessed case by case, depending on the duration and circumstances of the separation. - Does abandonment affect child custody?
Not automatically. Custody is determined on the basis of the child’s best interests, but prolonged absence or effective abandonment of the child by one parent can be a serious factor. - What does abandonment mean for spousal maintenance?
A spouse who left without reasonable cause will normally not be entitled to maintenance during separation and may instead be ordered to pay maintenance to the abandoned spouse, if the latter is in need. - What applies to child maintenance?
The obligation to maintain children is not affected by which spouse abandoned the home. Both parents must contribute according to their financial capacity. - Who remains in the home after abandonment?
If there is no agreement, the court may grant one spouse (often the one living with the children) exclusive use of the family home, without changing ownership. - Can I claim moral damages because my spouse abandoned me?
As a rule, no, not solely on the basis of abandonment. Compensation is considered only where there are independent unlawful acts (e.g. violence, serious infringement of personality, etc.).
This article is for information purposes only and does not constitute legal advice. Each case requires an individual assessment, based on the specific facts and the applicable legal framework. For specialised advice, please contact our law firm.
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