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04.06.2025
Judicial partition. Eviction of the current wife by the former wife from the family home
As a litigation lawyer specializing in family law, I have often dealt with complicated cases, both from a legal point of view emotionally and in terms of the pressure that the proceedings and their stakes placed on the parties (article Increasing the joint property of spouses after divorce, or how unresolved issues in youth can leave you bankrupt in old age and article The situation of the surviving spouse when the death of the spouse occurs during the judicial division of property acquired from a previous marriage"). Regardless of gender, age, social and professional status, partners who choose to end their relationship are left with unresolved issues, whether personal or financial. This leads to a situation where, although the personal relationship is completely worn out or exhausted, it somehow manages to survive in the most upsetting way, with disputes over judicial division and liquidation of the matrimonial regime being a constant source of unexpected emotions and passions.
It is well known that the processes of judicial division of joint property acquired by former spouses during marriage are among the most time-consuming, nerve-wracking, and expensive. The administration of evidence is lengthy and difficult, requiring expert reports (topographical, construction, real estate appraisal, accounting, etc.) to determine the value and possibility of dividing the joint property, as well as the administration of interrogations and witnesses to determine the actual contribution of each spouse to the acquisition of the joint property. I have encountered situations in which, taking advantage of the legal presumption of equal contributions, the wife who had never worked casually claimed half of the assets (houses, land, shares), as well as half of the income derived from the exploitation of these assets (rents, dividends, etc.). I have also encountered situations in which, although both spouses had worked continuously and developed impressive academic careers, the wife claimed a majority share of the contribution, citing her work in the household (which she calculated at the level of a housekeeper's salary) and the support of the maternal grandparents in raising the children (quantified at the level of a nanny's monthly salary).
In a recent case, a first instance court ruled that the joint property should be divided equally in kind, with the family home being awarded to the former wife, taking into account that she was also the resident parent of the minor child resulting from the dissolved marriage. However, during the division process, before the first instance decision was handed down, the former wife and the parties' minor child had voluntarily moved out of the family home, together with the mother's new partner, to a luxury area of the capital. In view of this situation, the former husband who remained in the home changed the locks and continued to live in the property, where his current wife and newborn child from his post-marital relationship subsequently moved in. The former wife's request to be reinstated in the property was rejected by the court, which instructed the parties to resolve their housing issues through judicial partition.
During the appeal stage of the division proceedings, the former wife—the virtual holder of a property right (non-definitive and unenforceable) over the property that had been the family home—understood that actual possession was an essential advantage in the definitive allocation of the property to one of the co-partitioners. After seven years in which one of the former spouses retained possession of the family home, it became less likely that the court of appeal would definitively award ownership to the non-possessing spouse. Taking advantage of the former spouse's absence from the property due to health problems, the former spouse launched a fierce campaign of harassment against the current occupants of the home, namely the partner and minor child, with the aim of removing them and regaining possession of the property. The former spouse's actions escalated: initially, she arrived at the door of the home with the bailiff, giving the current occupants a deadline to vacate the premises; as the deadline expired without the desired results, the entrance gate to the property was blocked, and the lock to the home was clogged with superglue. Shortly thereafter, for the purpose of intimidation, police assistance was requested by calling the emergency number 112 so that, together with the bailiff, an actual eviction could be carried out, which, however, was not possible without a court order ordering the eviction of the unlawful occupant.
The string of good deeds continued, and on Christmas Eve, the ex-wife filed a lawsuit to evict her ex-husband's current wife and child from the home they were in the process of dividing. The action for eviction was mainly based on the violation of the property rights granted to her by a (non-final) court decision and, secondarily, on the violation of the rules of co-ownership by shares, which require the agreement of all owners when concluding any act relating to common property. Essentially, the criticism concerned the lack of her consent for the woman described as her husband's mistress and the usurper of her marriage to live with the child resulting from this relationship in her family's former home.
In the eviction proceedings, the defendant defended herself by arguing that she was not occupying the property without right, but with the consent of the owner, who had even provided her with a formal tenancy agreement - a loan for use contract, that her domicile was registered at that address in official documents, that until the partition action is resolved by a final decision, the former spouses are considered by law to be joint owners with equal rights over the property, the eviction action being only a vexatious step, intended to give the plaintiff an advantage in the partition process, in reality, the plaintiff has no intention of actually living in the property. In addition, the defendant pointed out that she is not a mere unlawful occupant of the property, but is in fact the wife of the co-owner, living in the property with his child.
The court settled this dispute by dismissing the action for eviction. The court's reasoning was based on the legal provisions on joint ownership, which, although it ceases at the time of the dissolution of the marriage, is only liquidated upon completion of the partition, when, by final court decision or authentic notarial deed, the shares of each former spouse in the property right are established. Until the liquidation is completed, the community subsists both in terms of assets and obligations. Based on the presumption that the property in question constitutes joint property of the former spouses, the court held that, according to the mutual and tacit mandate provided for in the Civil Code, either spouse may conclude acts of administration or conservation of joint property alone, without the express consent of the other spouse, as long as they do not change its destination. In the case under review, the court held that the conclusion of the loan agreement invoked by the defendant by a single co-owner, without the consent of the other co-owner, is legal, as it is an act of administration of the property. Even if the conclusion of the loan agreement had been proven to be pro causa, given the agreement of one of the joint co-owners for the defendant to live with their child in the property in question, the court found that the defendant had a right of residence, as the loan for use agreement was concluded by the simple agreement of the parties, the written form not being required ad validatem or ad probationem.
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