When one of the two former spouses, despite a court order, continues to occupy the property without any remaining right to do so, what can be done? In a case I recently handled, I assisted my client, L., who, in the divorce judgment, was granted primary custody of the minor children, B. and R., with the consequent revocation of the family home assignment to her former husband, G.
Despite the court's decision, the former spouse refused to leave the home, arguing that, in the absence of a precise deadline indicated in the judgment, he was not required to vacate it immediately. This is a rather common objection, but legally unfounded. The divorce judgment, in fact, is immediately enforceable between the parties, under the principle laid down by article 282 of the Italian Code of Civil Procedure, and the revocation of the home assignment implicitly entails the obligation to release the property.
The revocation automatically entails the obligation to release the property
Now-settled case law holds that no express eviction order is required: the loss of the right of habitation automatically renders continued occupation of the property unlawful. In other words, once the assignment is revoked, the former spouse no longer has any title to continue occupying the home.
The enforcement tools used in this specific case
In this case, we therefore set the enforcement procedure in motion. The first step was to affix the so-called writ of execution clause to the judgment, which is indispensable in order to proceed. Next, through my firm, we served on the former husband a writ of execution under article 605 of the Italian Code of Civil Procedure, formally ordering him to leave the home within a specific deadline.
Faced with continued non-compliance, we initiated the actual enforcement phase. The bailiff then served the notice of release, indicating the date and time of the intervention for the compulsory release of the property. This stage is a decisive moment, because — in the event of further resistance — it paves the way for actual intervention, with the support of law enforcement if necessary.
Outcome and conclusions
The matter ended positively for my client: faced with imminent compulsory enforcement, G. finally left the home, avoiding further consequences.
This case shows that, where a judgment revokes the assignment of the family home, it is not possible to "buy time" or ignore the order. There are effective legal tools to obtain release of the property, and acting promptly makes it possible to protect one's rights in a concrete way — especially when minor children are also involved.