WITHDRAWAL OF FUNDS FROM A JOINT BANK ACCOUNT BY FORMER SPOUSES. TORT – INADMISSIBLE GRANTING OF AN UNJUST ENRICHMENT CLAIM. – The challenged judgment is set aside, having held that the respondent’s claim is legally and substantively well-founded, basing it directly on the provisions on unjust enrichment. This is so because the plaintiff has a claim arising from tort, namely the unlawful withholding by the defendant former spouse of a sum of money which she refuses to return to him. Consequently, since the unjust enrichment claim is by its nature subsidiary, it cannot be brought in the present case, given that the requirements of the tort claim are met and that it is not founded on facts different from or additional to those on which the tort claim rests. Sets aside judgment 3574/2020 of the Thessaloniki Single-Member Court of First Instance – (Articles 904, 914 of the Civil Code (AK)). (Areios Pagos 174/2025).
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Where the court has ruled on the merits of the case, the violation of a rule of substantive law is assessed in light of the facts which the trial court accepted, in its unreviewable discretion, as having been proved, and of their subsumption under the law. This ground is established when the court applied the law although the facts it accepted as proved were insufficient for its application, or when it failed to apply the law although the facts it accepted were sufficient for its application, as well as when it incorrectly subsumed the facts under a provision whose factual scope does not cover them (Plenary AP 20/2005, Plenary AP 32/1996).
From the permissible review, for the purposes of the cassation proceedings, of the procedural documents of the case (Article 561(2) of the Code of Civil Procedure (KPolD)), the following emerge: The plaintiff and present respondent in cassation, by his lawsuit dated 24-9-2015 before the Thessaloniki Magistrate’s Court, alleged that in June 1985 he contracted a lawful religious marriage with the present petitioner in cassation – defendant, from which they had 16 children. That in February 2015 the defendant evicted him from the family home and filed a divorce action against him. That during their married life he (the plaintiff) was working in two jobs while the defendant was not working, and he had entrusted to her the exclusive management of the family’s finances.
That he entrusted to her for safekeeping his savings, namely the sum of EUR 7,280, which he had inherited from his mother, and the sum of EUR 10,000, which he had withdrawn from their joint bank account out of fear that the Greek banking system would collapse, that is, a total of EUR 17,280. That a few days before the plaintiff was evicted from the matrimonial home, the defendant secretly and without his consent withdrew from their joint bank account the sum of EUR 1,900. That the defendant, despite repeated demands, refuses to return to him the above amounts, totalling EUR 19,180, which constitute his accumulated savings and which she unlawfully withholds. On the basis of the foregoing, he requested that the defendant be ordered to pay him the said sum.
On this lawsuit, the final judgment No. 3333/2016 of the Thessaloniki Magistrate’s Court was issued, which, having held the respondent’s lawsuit to be legally founded as based on the provisions on unjust enrichment, accepted it as substantively well-founded as well, and ordered the defendant to pay the plaintiff the sum of EUR 19,180.00, with statutory interest from the day following service of the lawsuit. The petitioner in cassation – defendant filed an appeal against this judgment, on which the contested judgment was issued, dismissing the appeal as substantively unfounded and upholding the above first-instance judgment. In so ruling, the Court of Appeals — namely that the respondent’s lawsuit is legally and substantively well-founded, basing it directly on the provisions on unjust enrichment, and accordingly dismissing on the merits the petitioner’s appeal and upholding the first-instance judgment which had ruled in the same way — incorrectly interpreted and applied the substantive law provision of Article 904 of the Civil Code (AK), since the conditions for its application were not satisfied.
This is so because, on the facts alleged in the lawsuit, the plaintiff has a claim arising from tort, namely from the unlawful withholding by the defendant of the sum of EUR 19,180, which she refuses to return to him. Consequently, in accordance with what was set out above in the major premise, since the unjust enrichment claim is by its nature subsidiary, it cannot be brought in the present case, given that the requirements of the tort claim are met and that it is not founded on facts different from or additional to those on which the tort claim rests (see AP 663/2018, AP 2058/2017, AP 1506/2009). Therefore, the first ground of cassation, based on Article 560 No. 1 of the Code of Civil Procedure (KPolD), by which the petitioner alleges that the contested judgment failed to interpret and apply correctly the aforementioned provision of substantive law, is well-founded.
Accordingly, with no need to examine the remaining grounds, which are covered by the cassation effect of the ground held to be well-founded, the application for cassation must be granted and the contested judgment must be set aside. The case must then be remitted, pursuant to Article 580(3) of the Code of Civil Procedure (KPolD), for further hearing to the same Court that ruled, composed of a different judge other than the one who issued the judgment now set aside.
It must also be ordered that the filing fee be returned to the petitioner (Article 495(3) of the Code of Civil Procedure (KPolD)) and that the costs of the petitioner, who did not file a brief, be imposed on the respondent in view of his loss (Articles 176 and 183 of the Code of Civil Procedure (KPolD)), as more specifically set out in the operative part.
FOR THESE REASONS
SETS ASIDE judgment No. 3574/2020 of the Thessaloniki Single-Member Court of First Instance.
REMITS the case for further hearing to the same Court, which shall be composed of a different judge other than the one who issued the judgment now set aside.
ORDERS the return of the filing fee to the petitioner who deposited it.
ORDERS the respondent to pay the costs of the petitioner, which it sets at two thousand (2,000) euros.
DECIDED in Athens, on 16 January 2024.
PUBLISHED in open session in its courtroom, in Athens, on 30 January 2024.
THE VICE-PRESIDENT THE CLERK
See also the article Cassation of a Criminal Judgment
FREQUENTLY ASKED QUESTIONS ON WITHDRAWAL OF FUNDS FROM A JOINT ACCOUNT BY FORMER SPOUSES
1. What claims do I have if my former spouse withdrew funds from our joint account?
When one co-holder withdraws from a joint account a sum greater than his or her share of participation in the deposits and refuses to return it, a claim arises in tort (Article 914 of the Civil Code (AK)) on account of unlawful withholding of another’s money. As a rule, funds in a joint account are deemed to belong in equal shares to the co-holders, unless it is shown that they originate exclusively from one of them. At the same time, such conduct may also constitute a criminal offence (embezzlement under Article 375 of the Penal Code (PK) or fraud), depending on the specific circumstances of the withdrawal.
2. Should the lawsuit be based on tort or on unjust enrichment?
The recent judgment 174/2025 of Areios Pagos clarifies that where the requirements of tort are met — as in the unlawful withholding of money from a joint account — the lawsuit must be based on Articles 914 et seq. of the Civil Code (AK). The unjust enrichment claim (Article 904 AK) has a subsidiary character and is brought only where there is no other basis or where it rests on different facts. An incorrect choice of legal basis leads to the dismissal of the lawsuit, even if the sum is in fact owed. Proper legal foundation is a strategic matter and requires legal expertise.
3. How long do I have to file a lawsuit?
The claim for damages in tort is subject to a five-year statute of limitations from the time the injured party became aware of the damage and of the person liable, and in any event after twenty years from the act (Article 937 AK). The claim for unjust enrichment is subject to a twenty-year statute of limitations (Article 249 AK). Where the withdrawal is connected to a criminal offence, the limitation period of the civil claim does not expire before the limitation period of the criminal offence. For sums below EUR 20,000, jurisdiction lies with the Single-Member Court of First Instance, with relatively quick completion of the proceedings.
4. What evidence do I need?
The principal piece of evidence is the detailed transaction history of the joint account, requested from the bank, which proves the withdrawal, the amount and the date. Evidence is also needed to prove the origin of the funds (e.g. salaries, inheritances, donations), where it is alleged that they belong exclusively to the plaintiff. Important elements include witnesses familiar with the family’s financial relationships, an extra-judicial notice served before filing the lawsuit, as well as any messages or correspondence in which the former spouse acknowledges the debt. The criminal case file, where one exists, reinforces the soundness of the tort claim.
5. What are the chances of success and what risks are involved?
The outcome depends mainly on two factors: correct legal foundation and evidentiary support. As judgment 174/2025 of Areios Pagos shows, an otherwise meritorious case may be set aside because it was based on the wrong provision of the Civil Code, leading to years of delay and additional court costs. Furthermore, if the defendant proves that the funds came from joint savings or were used for family needs, the awarded sum may be reduced. In addition, in case of loss, the plaintiff is ordered to pay the opposing party’s court costs.
6. What is the role of the lawyer in such cases?
The lawyer assesses from the outset which legal basis fits the facts (tort, deposit contract, unjust enrichment), preventing costly strategic mistakes. He gathers the bank documents through an extra-judicial request or court order, drafts the lawsuit with a clear statement of the facts, represents the client in court and ensures enforcement of the judgment through attachment of bank accounts or real estate. At the same time, he may file a criminal complaint for embezzlement or fraud, increasing pressure for a settlement. Experience in divorce cases and in matrimonial property disputes is critical.