Cosa succede se abbandono il tetto coniugale?

“Quali conseguenze rischio se abbandono il tetto coniugale?”

Si tratta di una domanda frequentemente posta all’avvocato da parte del marito e/o della moglie in piena crisi coniugale ed intenzionato/a a non dividere più la casa con il partner.

Innanzitutto, si deve sottolineare che l’abbandono del tetto coniugale si concretizza qualora uno dei coniugi scelga arbitrariamente di interrompere la coabitazione. 

Tale condotta, è bene dirlo subito, è effettivamente giuridicamente rilevante, e ciò in quanto con essa si disattende uno degli obblighi scaturenti dal vincolo matrimoniale, di cui all’art 143 c.c., tra i quali il nostro ordinamento annovera quello della coabitazione. 

È facile, conseguentemente, intuire che, in linea di massima, il coniuge che si allontani di casa possa essere “sanzionato giuridicamente”.

Nello specifico, colui il quale abbia abbandonato il tetto coniugale senza giusta causa, si espone al rischio di vedersi addebitare la separazione, con le relative conseguenze che ne derivano.

Tuttavia, in presenza di una causa di giustificazione, la condotta di chi si sia allontanato dalla casa coniugale è “discolpata”: una giusta causa si configura, ad esempio, in caso di condotte violente subite dal partner e che mettano a repentaglio la propria incolumità fisica e psichica, o nell’ipotesi di un tradimento subito o in corso, oppure, ancora, di un comportamento eccessivamente autoritario del coniuge. 

Sarà, naturalmente, compito di chi ha deciso di abbandonare la casa familiare dimostrare che i motivi che hanno motivato tale scelta siano validi, e che rientrino nella casistica stabilita dalla legge.

In mancanza di ragioni giustificative, dunque, essendo esposti al rischio dell’addebito, sarebbe sempre bene avviare la procedura separativa ed attendere la prima udienza davanti al Presidente del Tribunale, il quale con i provvedimenti provvisori ed urgenti, emanati all’esito della stessa, autorizza i coniugi a vivere separati. 

In questa sede è bene evidenziare, inoltre, che la condotta del coniuge che abbandoni il tetto coniugale, oltre a poter essere fatta valere in sede civilistica, assume al contempo profili di rilevanza penale: l'abbandono del tetto coniugale, infatti, non espone solamente al rischio dell’addebito della separazione, configurando in astratto una ipotesi di reato,  se il coniuge, abbandonando il domicilio domestico, si sottrae agli obblighi di assistenza inerenti alla responsabilità genitoriale o alla qualità di coniuge.

Sul punto, tuttavia, occorrono delle precisazioni. 

La Suprema Corte è infatti intervenuta in materia, specificando che affinché possa configurarsi il reato suddetto, l’allontanamento dalla casa coniugale debba essere "ingiustificato e connotato da un effettivo disvalore etico e sociale” (Cass. n. 12310/2012)

Pe cui, qualora il coniuge non faccia venir meno i mezzi di sussistenza ai figli e vi sia una giusta causa, l'abbandono del tetto coniugale non sarà penalmente rilevante

Bisogna infine, per completezza, sottolineare che la rilevanza giuridica della condotta del coniuge si ha soltanto nelle ipotesi in cui l’allontanamento dalla casa coniugale si concretizzi e diventi, in qualche modo, definitivo. 

Non potrà, infatti, darsi rilievo giuridico al comportamento di quel soggetto che, ad esempio, si limiti a minacciare di abbandonare il tetto coniugale o, ancora, si allontani da casa momentaneamente, ad esempio a causa di un litigio o di una incomprensione, per poi farvi rientro.

Tuttavia, alla luce di quanto riportato, tenendo presenti le conseguenze, tanto in sede civile quanto in sede penale, cui si rischia di andare incontro abbandonando arbitrariamente il tetto coniugale e considerato anche che ciascuna situazione presenta le proprie peculiarità, sarebbe sempre meglio agire con cautela, e comunque facendosi consigliare da un avvocato matrimonialista.

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