Has the husband (or wife) decided to leave the common home, packed their bags and disappeared into the sunset, heading off into a seemingly bright future in a new haven?

Why not, only they should know that it is not that easy to come back.

After desertion of one of the spouses, the real property remains part of the community property until its settlement; however, the spouse who has decided to desert the common household thereby voluntarily gives up the possibility of reoccupying the real property and thus enjoying the benefits of their own home.

In several of the provisions of the Civil Code, the importance of protecting the family home is declared, including the home of a family which one of the spouses has decided to leave in the common home, while deserting the household and moving out.

Although the filing of a divorce petition is not necessarily a prerequisite for the provision of protection to the abandoned spouse’s household, the spouse’s desertion is usually the result of ongoing problems in the marriage and its breakdown. By deserting the home, the spouse obviously does not lose their right to a proper settlement of the house, which is part of the community property, but such a settlement can be a long way off, especially if there are minor children in the family. The court must resolve the custody issues concerning the minor children before the divorce hearing and, if necessary, also before the house or apartment settlement hearing, and the proceedings may thus take several months or even years.

However, the Civil Code prioritizes the protection of the family and its household over the ownership right in the case of desertion of the family household by one of the spouses. If they desert the common household, whether upon agreement or by their unilateral action, the spouse cannot subsequently jeopardize the protection of the other spouse’s home by returning there without the other spouse’s consent. The common household may be still re-established but only subject to the consent of both spouses.

Here, one should bear in mind that desertion of a family household is not a mere physical act but also a juridical act which results in the extinguishment of the right to housing and, in turn, the protection of the right to housing of the abandoned spouse.

The Supreme Court of the Czech Republic itself emphasizes in its decisions that the existence of a family household in a house is one of the basic conditions for the creation and continuation of the right to housing.

If one of the spouses manifests the will to desert the family household with the intention of not returning there and not resuming cohabitation, the family household with that spouse ceases to exist in the eyes of law and, in turn, the family household consisting of the abandoned spouse and, where applicable, the children, becomes protected.

Desertion of the family household results in the termination of the deserting spouse’s right to housing and, conversely, the preservation of the right to housing of the abandoned spouse and children.

The above gives rise to new rights and obligations relating to the home of the abandoned spouse and also of the spouse who has left.

Is the spouse who has deserted the common household still obliged to make regular payments where the apartment or house is encumbered with a joint mortgage?

Does the abandoned spouse have the right to change the locks of the house or apartment which is part of the community property without the other spouse’s consent?

Does the spouse who has deserted the family household have the right to enter the apartment or house which is part of the community of property with the assistance of a locksmith?

Can such a conduct by the spouse who has deserted the family household constitute a criminal offence?

We are ready to assist you with these and any other issues, not only in the area of family law, at any time. Please contact us at info@advokatky.cz. We will be happy to assist you in resolving and clarifying your situation.

Mgr. Michaela Hošková, Attorney at law

Pajerová Sedláčková ADVOKÁTKY s.r.o.

10.6.2024