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Despite a divorce application, your ex-spouse does not always want to leave the marital home. When does he have to leave legally ? Can we get him fired?
Despite a non-conciliation order
As part of a divorce application , the family court judge issues a non-conciliation order, which notably fixes the separate residence of the spouses.
These are provisional measures pending the final measures of the divorce judgment. The judge sets a deadline (often between 1 and 6 months) after which the spouse must leave the marital home.
If the spouse does not leave at the end of this period, this does not constitute a fault such as to justify the divorce for fault. Similarly, the fact of remaining in the premises, if there has been no break-in, does not constitute either, in principle, an offense of home invasion.
In case of violence
In the event of psychological, physical or sexual violence against the spouse or the children of the household, the spouse of the victim may seize the family court judge during an emergency procedure. The judge can order the eviction of the violent spouse, even if no divorce proceedings are initiated. Due to the urgency of the situation, the family court judge has 1 to 2 months (depending on the jurisdiction) to order the expulsion of the spouse. Similarly, this procedure does not require the use of a lawyer.
The victim must send a registered letter to the family court judge, accompanied by supporting documents for the facts by any means: testimonies, medical certificates, etc.
In general, the decision is made quickly. However, these measures are temporary and the divorce proceedings must be initiated within 4 months of the order being issued.
The eviction procedure
If the spouse still does not leave the marital home, the spouse authorized to stay must contact a bailiff: the bailiff will then issue an order to leave the premises, giving a reasonable period (within 8 days) to allow the spouse to leave . If the spouse is still there, the bailiff will come to the home to carry out the eviction. If the spouse still refuses to leave, the bailiff must request the assistance of the police. If the non-conciliation order does not provide for expulsion, the spouse must seize the judge again to obtain an enforceable title expressly pronouncing the expulsion.
Also note that there is an interruption of evictions during the winter break, but only if the spouse has not shown violence.
DAMY law firm, Nice, My ex-spouse does not want to leave his home despite a divorce. 2020 update
