Divorce pending and the husband's lover moves into the shared flat... can this be counteracted?

The situation in the above headline may seem unimaginable, but life also writes such scenarios. The complete breakdown of the marital relationship, the pending divorce case and the attempt to start a new chapter in one's life, however, does not justify further complicating the already very complicated situation of the (still) spouses.

An act of revenge or a deliberate tactic

The introduction of a new partner or spouse's partner into the parties' shared accommodation may constitute a kind of revenge or, quite simply, an attempt to force the other party to move out. After all, divorce is, for some, a war in which no prisoners are taken. However, the decision to live, in the course of a divorce, in the same flat with the current spouse and with the new partner may cause a lot of trouble, as well as make the litigation situation of the party seeking divorce very much worse, especially when the witnesses of this unusual situation are minor children.

Lovers are not allowed

As a general rule, a flat acquired during marriage is jointly owned by the spouses (joint ownership) and the parties may dispose of it in accordance with the civil law provisions governing the relationship between co-owners. Therefore, in order to make decisions about the flat, e.g. its sale or major renovation, the express consent of both spouses is required. The aforementioned actions exceed the scope of the so-called ordinary real estate management, which is equated with everyday activities that do not involve a change in the legal status of the real estate or do not drastically interfere with its technical condition. On the other hand, acts exceeding the ordinary management of the real estate include, in particular, disposing of the real estate by abandoning it, pledging it or renting, leasing or lending it. The latter legal relationship is best suited to a situation in which one of the spouses decides to move in with a new partner. This is because the flat is lent to the lover, who uses it in the same way as the co-owners. However, such an action is completely unlawful, as the introduction of the husband's lover must be (still) agreed to by the wife. Obviously, with all the abstractness of this situation, such consent will not be given.

Defending against an unwanted tenant

The spouse who is the victim of such an action may successfully claim eviction of the unwanted roommate brought in by the other party. At the same time, a mistress moving into a shared flat, despite the wife's clear objection and demand to leave the premises, may also fulfil the elements of the crime of violation of home turf. According to the provision of Article 193 of the Criminal Code, a person who, against the demand of the authorised person (the wife), does not leave the new premises, may be held criminally responsible and subject to a fine, restriction of liberty or imprisonment of up to one year.

According to the cited provision, the person entitled to object and demand to vacate the premises is the person who has an effective right to use the premises - and, consequently, to decide who may reside there, as a result of his or her rights in rem, contractual relations or administrative decisions. Thus, if a divorce is pending and the joint property (including the flat) has not been divided between the parties - the husband's mistress, who has decided to live with him and still - the wife - may face other unpleasantness than a hostile roommate.