Divorce: Who leaves the home?

Divorce: Who leaves the home?

When a couple in Athens (and generally in Greece) enters into separation or moves towards divorce, the question often arises: who will remain in the family home? The “family home” – that is, the property used as the family’s main residence, regardless of whether it belongs to one or both spouses or even to a third party – is legally protected. The issue has both practical and emotional importance, which is why Greek law provides specific rules, based on the Civil Code and relevant case law, so as to avoid unfair or violent removals of spouses from the home.

Below we examine, in simple language but with strict legal accuracy, what applies before and after the divorce, as well as in special situations (such as joint lease, exclusive ownership, minor children, and interim measures).

Residence during separation (before the divorce)

In the phase of separation – that is, when the spouses have stopped living together but no divorce has yet been issued – no spouse is automatically required to leave the home. The obligation to “move out” (i.e. for one spouse to leave the common residence) is not self-evident; it arises only if the two spouses agree to it or if there is a relevant court decision.

If the couple cannot agree, the court having territorial jurisdiction (for example, the Athens Single-Member Court of First Instance) is competent to resolve the issue on a temporary basis. That court may – on the basis of article 1393 of the Greek Civil Code (AK) – grant the exclusive use of the family home to one of the spouses, regardless of whether that spouse is the owner or tenant of the property.

In other words, during the separation, the court has the power, for reasons of equity, to allow one spouse to continue living exclusively in the family home, even if, formally, the home belongs to or is rented by the other spouse.

Legal basis: Article 1393 of the Greek Civil Code provides that “in case of interruption of cohabitation, the court may, if reasons of equity so require… in view of the specific circumstances of each spouse and the interests of the children, grant to one spouse the exclusive use of the whole or part of the property which served as the family home, irrespective of which of them is the owner or has the right of use vis-à-vis the owner.”

With the separation, the obligation of common cohabitation ceases (article 1386 AK) and the need arises to protect the weaker spouse or the one who has a greater need to remain in the home. The regulation of article 1393 AK is a temporary solution that deviates from the general provisions on ownership and leases, guided by the protection of the family and the principle of equity.

Criteria examined by the court:
If the matter reaches the court, the decision as to who will remain in the home is not made arbitrarily. The court weighs various factors in order to decide fairly, including:

• Custody of minor children: As a rule, the spouse who has custody of the children is preferred to remain in the home, in order to ensure stability in the minors’ lives.
• Possibility of alternative housing: The court examines whether one spouse has another residence or family support available, while the other does not.
• The spouses’ financial situation: It takes into account who is in a position to bear the cost of moving or renting another residence, as well as their professional planning (e.g. work in another city).
• Any incidents of violence or serious conflict: If there is a history of domestic violence or dangerous conflicts, the court will certainly hold that the spouse at fault must be removed from the family home. It should be noted that Greek courts have ordered the removal of a spouse even without incidents of physical violence, where his or her behaviour seriously disturbed domestic peace.

The above criteria derive both from legislation and from case law: the general clause of equity requires the court to weigh the specific circumstances of each spouse and the interests of any minor children before deciding.

For example, if a spouse faces serious health problems or is financially weak, the courts tend not to order their removal from the home, even if under other circumstances that spouse might have been the one to leave. Conversely, if the presence of one spouse in the home makes living conditions unbearable (e.g. due to constant arguments or psychological pressure), that spouse’s relocation may be ordered in order to protect the peace of the household.

Important: The stay of a spouse in the home during separation is considered lawful for as long as the marriage exists. Even if that spouse is not the owner or tenant, he or she is not considered a trespasser: their residence is based on the marital relationship and (where applicable) on the relevant court decision.

The spouse who owns the property does not lose ownership of it, but temporarily cannot exercise possession of it, since that is lawfully exercised by the other spouse who remains in the family home.

Furthermore, no spouse is allowed to unilaterally evict the other from the home – such conduct would be unlawful. Removal without a court decision or without the other spouse’s consent is not permitted.

In the event of abandonment of the family home without good cause, the spouse who left may in fact be ordered to pay maintenance to the other spouse, as a consequence of breaching marital obligations (article 1391 AK).

Residence after the divorce decree

All of the above arrangements are temporary in nature. The special protection of the family home applies only for as long as the marriage exists. Once a final and irrevocable divorce judgment is issued, any court-ordered allocation of the home to one spouse due to separation ceases automatically.

At that point, the general rules on ownership and contracts governing the specific property fully re-apply. In short, after the divorce, the spouse who is the owner or tenant of the property (i.e. who holds a real or contractual right over it) regains all their rights, whereas the other spouse loses any right to continue living there.

In practical terms, this means that a court decision which, during the separation, granted the home to the non-entitled spouse ceases to apply once the divorce is issued. The spouse who was originally the lawful owner or tenant may now demand the immediate return of the property.

If the spouse who had been living there refuses to vacate, the owner/tenant may again resort to the courts (by bringing an action for recovery of use or applying for interim measures) in order to regain the home.

Example: If, during the separation, spouse A (the owner of the home) was compelled by a court decision to grant it temporarily to spouse B, so that she could stay there with the children, after the divorce A once again acquires full rights. B is no longer entitled to remain there without A’s consent. If she does not leave voluntarily, A may lawfully seek her removal.

Of course, many couples regulate these issues amicably in the context of the divorce (for example, via a private agreement). They may agree that the mother will remain in the home with the children for a transitional period after the divorce, even if the home belongs to the father. Such agreements are valid provided that they do not violate the rights of third parties (e.g. the owner if the home is rented).

However, in the absence of an agreement, after the divorce the legal relationship to the property prevails: whoever is the lawful owner or contractual tenant of the home has the right to use it exclusively and to require anyone else (including the former spouse) to vacate it.

More specifically, case law has held that, after the irrevocable dissolution of the marriage, the former spouses’ relationship to the home is governed solely by the property or contractual law that connects them. If the home was the family residence during the marriage but belongs entirely to one former spouse, that spouse now has full control: he or she may live there or prohibit the other from remaining.

If the home was leased (rented), the former spouse who was the contracting party to the lease remains the sole tenant after the divorce. In the case of a joint lease (see below), both former spouses formally remain co-tenants vis-à-vis the landlord until the contract is amended.

If the home was jointly owned (belonged to both), they continue to be co-owners after the divorce – the use of the property is now governed by the rules on co-ownership and, if they cannot agree, either of them may seek partition/sale of the property through the courts.

Joint lease of the family home

A particular situation arises where the family home is rented and both spouses are co-tenants under the lease – that is, both have signed the lease as tenants. In such a case, during the marriage both have an equal right to reside there. What happens, however, during separation and afterwards?

• During separation: As in any case, who will remain in the leased property is determined either by agreement or by court intervention. The court may, by its decision, grant the home exclusively to one spouse, even if the lease was in both names. The spouse who is required to leave is not considered to be “breaching” the lease – it is a temporary arrangement by virtue of a court decision, which prevails over any contrary term of the contract.

It should be noted that the departure of one spouse from the leased property does not automatically release them from their obligations towards the landlord: for as long as they remain a party to the lease, they are, for example, liable for payment of the rent. If the spouse who stayed in the home does not pay the rent, the landlord could, in law, also pursue the other spouse (as long as that spouse has not been released from the contract).

In practice, couples often inform the landlord of their separation and agree who will continue the lease.

• After the divorce: At this stage, matters must be regularised contractually. The current law does not provide for any automatic transfer or “splitting” of the lease in the event of divorce. This means that, if the lease remains in both names, both former spouses continue to be regarded as tenants vis-à-vis the landlord until a change is made.

Usually, there are two options:
(a) they agree with the landlord to amend the contract so that only one remains as tenant (e.g. the spouse who actually lives there after the divorce), or
(b) they agree to terminate the lease early if neither wishes to continue it.

In any case, without a new agreement, the landlord is entitled to treat both as jointly liable for the rent and for the condition of the property.

As between the former spouses, after the divorce, the one who no longer lives in the home should arrange to be released from the lease, because otherwise they find themselves in an unusual position: they have no right of use (since they have left) but still bear obligations vis-à-vis the landlord.

It should also be noted that if one former spouse, acting abusively, attempts to terminate the lease in collusion with the landlord solely in order to force the other spouse – who remains in the home – to leave, such termination may be held invalid or give rise to liability in damages towards the spouse who has been harmed. Case law has dealt with such situations, protecting the spouse who remained in the leased property when the other tried, in bad faith, to terminate the lease to their detriment.

Finally, it is worth noting that, for as long as a court decision under article 1393 AK (granting use of the family home) is in force, the stay of the beneficiary spouse in the leased property is not considered subletting and does not breach the lease, even if there is a clause prohibiting assignment to third parties – because the allocation of use arises by virtue of law and not contractually.

The original spouse-tenant remains de jure tenant vis-à-vis the landlord, while the other spouse simply has possession as a holder with judicial protection. If the tenant spouse fails to pay the rent, the spouse in possession may pay it directly to the landlord in order to prevent eviction and then seek reimbursement from the tenant spouse (any objection by the latter is rejected by the courts as abusive and contrary to the purpose of the law).

Family home in the exclusive ownership of one spouse

Another common situation is where the family home belongs as property exclusively to one spouse (for example, it was an asset acquired before the marriage or purchased in that spouse’s name) – or is rented solely by one spouse. What happens then as regards “who has to leave”?

• During separation: The fact that the home is “in one name” does not mean that the other must immediately leave without recourse. Here too, the rule of article 1393 AK applies – the court may, if the circumstances so require (for example, where there are young children, where the non-owner has nowhere else to go, where there is violent behaviour on the part of the owner, etc.), order that the non-owner spouse remain temporarily in the family home, even though the property is not theirs.

Such a decision does not transfer ownership or the leasehold right – it simply grants possession and use to the beneficiary spouse for a specific period. The owner spouse, correspondingly, is obliged to move out, unless the court orders a solution of cohabitation in separate parts of the same dwelling (which is rare in practice).

It should be stressed that the removal of an owner from their own home is not considered unconstitutional or similar, because it is expressly provided for by law for reasons of family protection and is temporary.

• After the divorce: As already explained, once the marriage is dissolved, the owner (or tenant) regains full control. Any court-ordered allocation of the residence ceases to apply automatically. The spouse who was, up to that point, effectively “hosted” there (even if under a court order) must surrender the property.

If they do not do so, the owner has all legal remedies available to recover it (see above – eviction action or interim measures).

It is important to emphasise that divorce does not grant any right to the non-owner to remain indefinitely in a home that does not belong to them. Some people mistakenly believe that “because I lived there for X years, I am entitled to it.” In reality, the only right that the non-owner may have is financial in nature: if, during the marriage, they contributed to the acquisition or increase in value of the property, they may claim monetary compensation after the divorce (a claim for participation in acquisitions, article 1400 AK).

They do not, however, acquire a right to continue living in the home. Possession and use of the property revert exclusively to the owner-spouse.

In conclusion, if the home was 100% owned by one of the spouses, after the divorce the other must make arrangements to find new accommodation. Often this issue is linked to the obligation to pay maintenance: the economically weaker spouse (especially if they have custody of the children) may receive post-divorce maintenance, from which they can cover the housing costs of a new residence. However, this is a separate issue – it does not grant a right to remain in the other spouse’s home.

Presence of minor children – the impact of custody

The existence of minor children is one of the most decisive factors in regulating the family home. The interests of the children are a primary consideration for the court (as well as for the parents themselves). In particular, where children live in the family home, the aim is to disrupt their lives as little as possible due to the parents’ separation.

During separation, as mentioned above, the court will usually choose to have the parent who will have custody of the children remain in the family home. Greek case law has consistently held that “in cases where there are minor children, preference is given to the spouse who has custody of them.” The reason is obvious: to avoid forcing the children to change environment, habits, school, etc. in the midst of an already difficult situation.

If, moreover, one parent is found unsuitable or dangerous for the children (e.g. in a case of domestic violence), their removal from the home becomes even more necessary – sometimes it is ordered immediately by way of a temporary restraining order (see next section).

The presence of minor children thus crucially affects the use of the family home: the court takes their interest primarily into account and often allows the parent with custody to remain in the home during the separation.

After the divorce, the question of who has custody does not, as such, alter the legal rights of ownership or tenancy in relation to the home, but in practice it can influence the arrangements agreed. For example, where the family home belongs to the father but the mother has custody, the parties may – for the children’s sake – agree that the mother and children will remain in the home for a period after the divorce.

Such arrangements are, however, the result of agreement (or of a court decision in interim-measure proceedings before the divorce is finalised). From the moment the marriage is dissolved, the law does not grant a special right to the custodial parent to keep the other spouse’s home.

If there is no voluntary agreement, the principles outlined above apply: the lawful owner/tenant has the right to demand return of their home, regardless of the children. In such a case, the interests of the children are taken into account indirectly through other mechanisms – for example, higher maintenance so that the parent with whom the children live can afford a suitable new residence.

In summary, during separation the question of where the children will live is crucial for determining who stays in the home. After the divorce, custody remains very important, but the focus shifts from “use of the home” to “financial support”: that is, the non-custodial parent is usually obliged to pay sufficient maintenance so that the other parent can house the children in an appropriate environment.

Temporary restraining orders and interim measures concerning the family home

The process of resolving the housing issue can take time, especially if a full-scale action on the merits is required. For this reason, the law provides tools for immediate and temporary protection. Specifically:

• Interim measures (ασφαλιστικά μέτρα): Under the Greek Code of Civil Procedure, the court may, in urgent cases, order any appropriate measure to regulate the spouses’ relations during the marriage. In this context, it may in particular order the relocation (μετοίκηση) of one spouse (i.e. for them to leave the home) and determine which spouse will use the family residence until the dispute is definitively resolved.

Interim-measure proceedings are a temporary judicial procedure with expedited examination: in Athens, they are usually heard within 1–2 months from filing, and the decision is issued shortly thereafter. They remain in force until a final judgment is issued in the main proceedings (e.g. in the divorce case or in an action for allocation of the home’s use).

• Temporary restraining order (προσωρινή διαταγή): Because even 1–2 months may be too long where there is acute conflict, there is also provision for a temporary restraining order. This means that, within a few days (or even on the same day in exceptional cases), the judge may issue a short-term order that immediately regulates the situation until the interim-measure hearing.

For example, in the event of a serious argument or violence, a temporary restraining order may be issued requiring one spouse to leave the home immediately and not to approach it until the interim-measure application is heard. The temporary restraining order ensures a calm status quo during this critical period.

Procedure & rights:
If a spouse believes there are grounds for the other to be removed from the residence, they must act through legal channels. The steps include collecting evidence (e.g. witness testimony, messages, police reports where applicable) and filing an application for interim measures with the competent court.

As already mentioned, no one may evict the other spouse without a court decision or without consent. If someone attempts to change the locks or evict the spouse by force, they risk legal consequences. By contrast, following the lawful route allows the removal of the other spouse in a way that is institutionally safeguarded.

It should be noted that interim-measure proceedings concerning the family home are heard under the special procedure for family disputes, which is more flexible and quicker than ordinary civil proceedings.

Duration and outcome:
As noted above, a temporary restraining order provides an immediate solution for a few weeks, and the interim measures provide an intermediate solution for several months or years (depending on how long the main proceedings take).

These decisions do not create a permanent res judicata – they may be revised if circumstances change, and they cease automatically upon divorce. The final solution will come either by agreement or through the court’s final judgment in the divorce proceedings or in a separate action regarding the family home.

Conclusion

In the context of a divorce, the question “who leaves the home” is addressed through a combination of legal rules and common sense. Greek law – as applied by the courts of Athens and throughout the country – seeks to strike a fair balance: it protects the economically or socially weaker spouse during the separation, taking into account primarily the children’s interests and the specific circumstances of each party.

At the same time, it ensures that, in the longer term (after the divorce), property and contractual rights are not abolished but may be restricted only temporarily for as long as the marriage exists.

In simple terms: before the divorce, no-one leaves without reason – if necessary, the court decides who will stay in the home for a period – while after the divorce, each spouse goes their own way and the home reverts to the person who holds the lawful title.

Finally, every case has its own particularities. The above principles are applied flexibly so that justice can be done in real-life conditions. It is therefore important for anyone facing such an issue to consult a lawyer with experience in family law. Knowledge of the law (Greek Civil Code, Code of Civil Procedure) and the relevant case law ensures that the best possible solution will be found – protecting both the spouses’ rights and the welfare of the children and the family as a whole.

FAQ – Divorce & the family home

“Who leaves the home?”

1. As soon as we separate, does someone “have to” leave the home?

Not automatically.

During the separation phase, no spouse is obliged to leave simply because cohabitation has ceased. A spouse leaves only:

• if the spouses agree to it, or
• if there is a court decision granting exclusive use of the family home to one spouse (article 1393 AK).

2. Can one spouse unilaterally throw the other out of the home?

No.

No spouse may unilaterally evict the other, “throw them out”, or change the locks on their own initiative.

• Removal without consent or a court decision is not permitted.
• A spouse who attempts this risks legal consequences.

3. If I live in the home but I am not the owner or the tenant, am I a “trespasser”?

No, as long as the marriage still exists.

The spouse’s stay in the family home for as long as the marriage lasts:

• is based on the marital relationship, and
• (where applicable) on a relevant court decision (article 1393 AK),

so it is not considered unlawful trespass.

The spouse-owner does not lose ownership, but temporarily does not exercise possession, which is lawfully exercised by the other spouse.

4. How does the court decide who will remain in the family home during separation?

The court applies article 1393 AK and weighs the specific circumstances of each spouse and the children’s interests. The criteria include:

• Custody of minor children: the parent with custody is usually allowed to remain in the home.
• Alternative housing: whether one spouse has another residence/support while the other does not.
• Financial situation: who can more easily move or rent a new home.
• Incidents of violence or serious conflict: in cases of domestic violence or unbearable cohabitation, the spouse at fault may be ordered to move out.
• Specific personal circumstances: e.g. serious health issues or particular vulnerability.

The solution is temporary and operates by way of exception to property-law rules, for reasons of family protection and equity.

5. What changes once the divorce is issued, as regards the home?

With the irrevocable dissolution of the marriage:

• Any court-ordered allocation of the family home due to separation ceases automatically (article 1393 AK).
• The general rules on ownership and leases fully re-apply.

In practical terms:

• The spouse who is owner or tenant of the property fully regains their rights.
• The other no longer has the right to continue living there, unless there is an agreement between them.
• If the latter does not leave voluntarily, the owner/tenant may take the matter to court (e.g. an action for recovery of use, interim measures).

6. If the home is in the exclusive name of one spouse, can the court “order them out” during separation?

Yes, on a temporary basis.

• Article 1393 AK allows the court, for reasons of equity, to grant the exclusive use of the family home to the non-owner spouse.
• The owner spouse may be obliged to move out, even though the home is theirs or the lease is in their name.
• The arrangement is temporary, does not transfer ownership or leasehold rights, and is lawful because it is based on the protection of the family.

After the divorce, this allocation ceases automatically, and possession/use revert to the owner or tenant.

7. If I lived for many years in my spouse’s home, do I acquire a right to stay there after the divorce?

No right of residence – only a possible financial claim.

Long-term residence:

• does not in itself create a right for the non-owner to continue living in the home after the divorce,
• but it may give rise to a claim for participation in acquisitions (article 1400 AK), if it can be shown that the non-owner contributed to the acquisition or increase in value of the property.

This claim is monetary (compensation), not a right to remain in the property.

8. How do minor children affect who stays in the home?

During separation:

• The court, in practice, tends to let the parent who has custody of the minor children remain in the family home,
• so as not to abruptly disrupt the children’s daily life (school, environment, routines).

After the divorce:

• Custody does not by itself change ownership or lease rights,
• the parents may agree that the custodial parent will remain in the home for a certain period,
• if there is no agreement, the legal relationship with the property prevails: the owner or tenant may demand the home’s return,
• the children’s housing needs are taken into account mainly through maintenance (e.g. higher maintenance to cover the cost of a new residence).

9. We have jointly rented our home (joint lease). What happens if we separate?

During separation:

• Who stays in the leased property is regulated by agreement or by court decision (article 1393 AK).
• The court may grant the use of the home to one spouse only, even if the lease is in both names.
• The spouse who leaves is not automatically released from their obligations to the landlord as long as they remain a co-tenant.

After the divorce:

• There is no automatic termination or transfer of the lease due to divorce.
• If the lease remains in both names, both continue to be regarded as tenants by the landlord.
• To change this, an agreement is needed (e.g. an amendment so that only one remains tenant, or early termination of the lease).

10. If I move out of a rented home, am I still liable for the rent?

Yes, as long as you remain a party to the lease.

• Physically leaving the leased property does not automatically release you from your obligations under the lease.
• The landlord may pursue you as well for unpaid rent, as long as your name remains on the contract.

For this reason, after the divorce, the spouse who no longer lives in the home should ensure they are released from the lease (by amending or terminating it).

11. Can the other spouse, in collusion with the landlord, terminate the lease to “get back at me”?

If the termination is made abusively, purely to drive out the spouse who is living in the home, it may:

• be considered legally abusive, and
• give rise to liability in damages towards the spouse who suffers harm.

Case law has protected spouses in such situations, where the other spouse attempted, in bad faith, to terminate the lease to their detriment.

12. Is my stay in the leased home under a decision based on article 1393 AK considered subletting or a breach of the lease?

No.

• When the court allocates the family home to one spouse under article 1393 AK,
• that spouse’s continued stay is not considered subletting, nor a breach of a clause prohibiting assignment to third parties,
• because the allocation of use arises by virtue of law, not by private agreement.

The original tenant remains the tenant vis-à-vis the landlord, while the other spouse has possession with judicial protection. If the tenant fails to pay the rent, the spouse in possession may pay it themselves to prevent eviction and then seek reimbursement from the tenant spouse.

13. How can I have the other spouse ordered to leave the home immediately in cases of serious conflict or violence?

Removal may only be ordered through court proceedings, not by self-help. The main tools are:

• Interim measures:
  The court may, in urgent situations, temporarily regulate the use of the family home (e.g. order one spouse to move out).
• Temporary restraining order:
  In very urgent cases (e.g. violence, serious conflicts), the court may, within a few days or even on the same day, issue an order immediately determining who will remain in the home until the interim-measure hearing.

This requires:

• filing an application with the competent court, and
• gathering evidence (witnesses, documents, any police reports, etc.).

14. How long do interim measures and temporary arrangements regarding the family home remain in force?

• A temporary restraining order remains in force for a very short period, until the interim-measure hearing.
• Interim measures remain in force until a final judgment is issued in the main proceedings (e.g. the divorce or an action concerning the family home).
• These decisions are temporary:
  • they may be revised if circumstances change,
  • they cease automatically upon dissolution of the marriage (divorce).

This article is for information purposes only and does not constitute legal advice. Every case requires an individual assessment based on its specific facts and the applicable legal framework. For tailored advice, please contact our law firm.