Among the various obligations that derive from marriage is that of cohabitation, which represents one of the founding bases of married life. In fact, in accordance with the provisions of art. 144 of the Italian Civil Code, they agree on the direction of family life and fix the family's residence, according to the needs of both and the pre-eminent needs of the family itself.

However, it is not uncommon for one of the spouses to decide to leave the family home in situations of marriage crisis. In such situations, it is completely normal for doubts and perplexities to arise about what the legal consequences of this choice may be. Abandonment of the marital roof is a legal concept that can have important repercussions during separation, especially if there are no valid reasons to justify the removal.

For this reason, it is essential to understand what exactly is meant by abandonment of the marital roof, what are the circumstances that make it lawful and what the consequences that may result from it.

What is abandonment of the marital roof?

The abandonment of the marital roof occurs when one of the spouses, without valid justification, arbitrarily moves away from the residence that had previously been identified as a family home and refuses to return there. This behavior, if it occurs without just cause, can be considered a violation of the marital duties enshrined in art. 143 of the Civil Code, which, as mentioned, imposes on spouses the mutual obligation of cohabitation. The notion of just cause is a deliberately generic notion to allow the judge an adequate assessment of the situation.

However, it is considered that the removal is justified when:

1- an application for separation or for annulment or for dissolution or for the cessation of the civil effects of the marriage has been proposed. In fact, it is considered that the introduction of such procedures is worth in itself to make living together intolerable; 


2- events have occurred such as to make the continuation of living together intolerable or such as to cause serious harm to the offspring. A typical example is when a spouse has engaged in abusive and/or violent behavior towards the other or children. 


In any case, the burden of proving the existence of just cause lies with the spouse who has moved away.

What are the consequences of abandoning the marital roof?

The Civil Code provides that various effects derive from the abandonment of the marital roof. For them to come true, however, it is necessary for the abandoned spouse to invite the other to return and for the latter to refuse to do so. The invitation to return does not require any particular form, as long as it is expressed. The refusal, on the other hand, can also be tacit, materializing in the simple fact of not returning to the marital home.

If it is ascertained that the abandonment of the marital roof was unjustified, the legal consequences faced by the spouse are as follows:

1- the suspension of the right to moral and material assistance (art. 146 of the Italian Civil Code).

2- the seizure of their assets, to guarantee the fulfillment of the obligation to contribute and the parent's obligation to support the children;

3- the charge for the separation, with the consequent loss:

- the right to maintenance allowance, unless the spouse is in need (in this case, if the conditions are met, he will be entitled to alimony, that is, he may be entitled to a maintenance allowance commensurate with his needs and the economic conditions of the spouse who must administer them);

- inheritance rights. 


4- in the case of minor children, the judge could consider the abandonment of the marital roof as a significant factor in the custody of minors, giving priority to the spouse who has guaranteed family stability. If, in fact, the abandonment of the marital roof resulted, on the part of the spouse who carried out the removal, a failure to contribute to the needs of the family, with serious prejudice to the offspring, this behavior could be evaluated by the judge as an indication of parental unsuitability, which, in the most serious cases, could lead to a decision of sole custody of minors in favor of the other spouse.

Is abandoning the marital roof a crime?

According to article 570 co.1 of the Italian Civil Code, anyone, leaving their domestic home, or in any case engaging in conduct contrary to the order or morals of the family, evades the obligations of assistance inherent to parental responsibility or the status of a spouse, is punished by imprisonment for up to one year or by a fine from 103 euros to 1,032 euros. It is important to emphasize, therefore, that the simple choice to leave the marital home no longer constitutes a criminal offense. Currently, in fact, for the crime to take place, not just any removal from the marital roof, but it is necessary that:

(i) the spouse does not intend to return there;

(ii) the removal resulted in a violation of the care obligations inherent to the quality of a spouse (e.g. if the spouse who leaves the marital home also ceases to contribute financially to the maintenance of the family). The abandonment of the marital roof, therefore, does not refer only to the mere physical absence from the family home, but also to the unjustified interruption of all forms of moral and material assistance to the spouse and, possibly, to the children. Therefore, the case law tends to evaluate the circumstances of the removal on a case-by-case basis, analyzing whether there has been a legitimate reason justifying the conduct of the spouse who has moved away.

It is therefore important to distinguish between mere removal, which may have civil repercussions, and the violation of maintenance obligations, which can also have criminal consequences. Anyone who is in a situation of marital crisis and is considering leaving the family home should consult an attorney to avoid incurring any legal liability.

An example case

To better understand the consequences of abandoning the marital roof, let's try to consider a practical case.

Following the violent conduct of her husband, the wife, in order to protect her own safety and that of her minor children, decides to leave the family home.

The removal carried out by the woman, in this case, is fully justified, since the wife, faced with the occurrence of events such as to make cohabitation intolerable and to cause serious harm to the offspring, has moved away from the family residence in the presence of a just cause. Therefore, the woman cannot be charged for the separation in any way. On the contrary, in the face of the conduct preserved by the husband who, with his behavior, made cohabitation intolerable and caused serious prejudice to the offspring, he will be charged with the separation.