Fault divorce

In the context of a fault divorce, when a family court judge issues a divorce agreement, three specific conditions must be met in conjunction:

1. A deliberate action that can be attributed to one of the spouses.
2. This action must involve a significant or repeated breach of marital obligations.
3. Such a breach must render the continuation of the marital union unbearable.

It’s important to note that all three of these conditions work together.

In France, as in many other countries, marriage is considered as a legal and social contract that carries certain responsibilities and duties for both spouses. These duties are often based on traditional moral expectations and legal principles. Some of the key marriage rights in France may include:

• Mutual Respect and Fidelity: Spouses are expected to treat each other with respect and being faithful to each other, meaning they should be faithful to each other and not engage in  having affairs.
• Material and Financial Support: Spouses have a duty to support each other financially. This includes providing for the family’s basic needs and contributing to the household’s economic well-being.
• Collaboration in Household Matters: Spouses are generally expected to collaborate on household chores, childcare, and other domestic responsibilities.
• Moral and Emotional Support: Marriage often involves providing emotional support and care to one’s spouse during difficult times and challenges.
• Parental Responsibility: If the couple has children, both spouses have legal and moral responsibilities towards their children, including their education, upbringing, and welfare.
• Shared Living Arrangements: Spouses typically live together as a married couple unless there are specific reasons for living apart.
• Consent for Certain Acts: In some cases, consent from the other spouse may be required for significant decisions, such as selling joint property or making major financial transactions.

It’s important to note that the specific marriage duties can vary depending on individual circumstances and agreements between the spouses.

Additionally, French law and societal norms evolve over time, so the understanding of marriage duties may change with cultural shifts and legal reforms. In any case, it’s advisable for couples to have a clear understanding of their mutual responsibilities and expectations in marriage, and they may choose to formalise these agreements in prenuptial or postnuptial agreements.

The concept of fault divorce in France, the USA, and the UK shares some similarities but also has important differences due to variations in legal systems and practices. Here are the key differences between fault divorces in France and the USA/UK:

1. Grounds for Fault Divorce:

– France:

In France, a fault divorce, known as “divorce pour faute,” is based on specific grounds, such as adultery, cruelty, abandonment, or grave misconduct. These grounds are defined by French law, and the accusing spouse must provide evidence of the alleged fault in court.

– USA/UK:

In the USA and the UK, fault divorce is also based on grounds, but the specific grounds can vary by state in the USA and by jurisdiction in the UK. Common grounds for fault divorce in these countries may include adultery, cruelty, abandonment, or desertion. However, many states in the USA and parts of the UK have shifted toward “no-fault” divorce, where proving fault is not necessary to obtain a divorce.

2. Legal Process:

– France:

In France, the fault divorce process generally involves presenting evidence of the alleged fault in court, and a judge will rule on whether the grounds for divorce are valid. The process may be more adversarial and involve litigation.

– USA/UK:

In the USA and the UK, the legal process for fault divorce can vary by jurisdiction. In some places, fault must be proven in court, similar to the French system. In others, no-fault divorce may be the primary or exclusive option, making it unnecessary to prove fault.

3. Role of No-Fault Divorce:

– France:

France primarily uses the concept of “fault divorce,” and no-fault divorce is less common. While there is a form of mutual consent divorce (“divorce par consentement mutuel”), it also involves specific legal requirements and proceedings.

– USA/UK:

In the USA, many states have adopted no-fault divorce laws, allowing couples to divorce without assigning blame. In the UK, no-fault divorce legislation has been introduced to simplify the divorce process and reduce the need to prove fault. As a result, no-fault divorce is becoming the norm in both the USA and the UK.

4. Impact on Divorce Settlement:

– France:

In France, the alleged fault may have an impact on property division and spousal support arrangements, as the accusing spouse may seek a more favourable outcome based on the misconduct of the other spouse.

– USA/UK:

In jurisdictions where fault divorce is recognised, the alleged fault can similarly affect property division and support arrangements. However, in places where no-fault divorce is prevalent, the focus is often on resolving these matters without assigning blame.

It’s important to note that divorce laws and practices can change over time, and the specifics may vary depending on the region or jurisdiction within each country. Additionally, cultural and legal attitudes toward divorce can influence the prevalence of fault or no-fault divorce in a given area.

The responsibilities and obligations of marriage continue to apply until the divorce is officially completed. Therefore, spouses are expected to uphold these duties throughout the divorce proceedings.

It is important to note that, in principle, being faithful to one’s spouse is expected even during the divorce process, as established in the legal case of Civ 2ème, May 3, 1995, case number 93-13.358. However, it’s worth mentioning that this legal requirement is relatively dated.

In practice, modern Tribunals and Courts tend to show more flexibility. The family judge considers the unique circumstances of the spouses. If the divorce proceedings is long or if the spouses have been living separately for an extended period, the severity of any alleged faults is assessed with greater flexibility, as demonstrated in the case of Civ 2ème, April 29, 1994, case number 92-16.814.

To establish an act as a fault for the court, particularly the family court judge, two key criteria must be met:

• The marriage rights or obligations have been disregarded on multiple occasions.
• The marriage rights or obligations have been significantly violated.

It’s important to note that these criteria are presented as alternatives, not requirements. In other words, the court cannot consider both criteria at the same time when determining the existence of a fault, as stated in the legal precedent Civ 2nd, October 25, 1995, No. 93-13.773.

The Court of Cassation (Supreme Court) sets forth the following guiding principle:

“Judges can only grant a divorce for fault when the actions attributable to one spouse constitute a severe or repeated breach of the duties and obligations of marriage, rendering the continuation of cohabitation intolerable. Notably, the conditions of the first criteria are presented as choices, not accumulative requirements.”

What constitutes a serious violation of marital status may be interpreted differently by different individuals and, to some extent, by the courts.

When pursuing a fault divorce in France, the claimant must provide evidence to support their claims of serious misconduct, and the court statutes based on the facts presented.

In cases of fault-based divorce, evidence can be presented through different ways, and there is no restriction on how proof can be established (as per Article 259 of the Civil Code).

Examples of admissible evidence:

• Handwritten testimonies from individuals (with the exception of the spouses’ descendants).
• Confessions made by one of the spouses (as per Article 259 of the Civil Code).
• Telephone or written conversations, such as emails (Civ 1ère, May 18, 2005, n°04-13.745), letters, or SMS (Civ 1ère, June 17, 2009, n°07-21.796).
• Photographs, like pictures showing a spouse’s profile on a dating site or their intimate conversations with a third party (CA Lyon, February 2011).
• Personal diaries (Civ 2ème, May 6, 1999, n°97-12.437).
• Information gathered from social networks and dating sites (Paris, June 18, 2009, RG n°08/13289).
• Bank statements.
• Complaints or reports.
• Bills.
• Private investigator reports (Civ 1ère, May 18, 2005, n°04-13.745) or reports from a bailiff (for instance, reports regarding adultery or the abandonment of the marital home).
• Reports of a paternity test in cases unrelated to paternity disputes (Civ 1ère, February 28, 2006, n°04-12.736).
• Extracts from a criminal record (TGI Nanterre, JME, March 11, 1975).
• Data found on a family computer with no password protection (Paris, December 19, 2007, RG n°07/03365).
• Data discovered on the hard drive of a computer situated in the bedroom of a husband who has left the marital home (Aix-en-Provence, May 6, 2010, RG n°10/01789).

No, not all evidence is admissible.

Evidence must be obtained fairly, meaning it should not be acquired through violent or fraudulent ways (as stipulated in Article 259-1 of the Civil Code). The burden of proving fraud or violence falls upon the spouse who raises such claims (Civ 2ème, February 16, 1983, n°81-12.732).

Some types of evidence cannot be used, including:

• Testimony from shared or previous children (Article 259 of the Civil Code).
• The contents of a social investigation report ordered by the court (family law judge) (Article 373-2-12 of the Civil Code and Civ 1ère, December 13, 2017, n°16-25.256). The Court of Cassation clarified, “The content of the social investigation, which includes the parties’ statements, cannot serve as evidence in support of a divorce request, as specified in Article 373-2-12, paragraph 3 of the civil code.”
• Evidence obtained through a trick.
• Telephone conversations (Crim, March 3, 1982, n°80-95.226), voice recordings, or videos acquired without the knowledge of the other spouse.
• The installation of spyware or hacking of an email account or social network (Douai, March 14, 2013, RG n°12/02493).
• The use of medical records (CEDH sec. II, October 10, 2006, L. L. c / France, No. 7508/02).
• Testimony from individuals bound by professional confidentiality (e.g., social workers: Civ 2ème, June 24, 1992, n°90-18.021, or ministers of religion: Civ 2ème, March 29, 1989, n°88-10.336).

The spouse seeking the divorce typically needs to provide evidence to support their claims.

Fault-based divorce in the UK and the USA refers to a type of divorce in which one spouse alleges that the other spouse is responsible for the breakdown of the marriage due to specific faults or misconduct. The criteria and processes for fault-based divorce vary between these two countries.

• United Kingdom (UK):

In the UK, fault-based divorce is no longer the primary method of divorce. Since the implementation of the Matrimonial Causes Act 1973, the primary ground for divorce is “irretrievable breakdown of the marriage.” However, couples can still petition for divorce based on fault, which includes grounds such as adultery or unreasonable behaviour (i.e., cruelty, abandonment, or other misconduct).

To initiate a fault-based divorce in the UK, one spouse must prove that the other spouse’s behaviour or actions have led to the irretrievable breakdown of the marriage. This typically involves providing evidence and examples of the alleged fault. In practice, many divorces are now based on the separation of the couple for a specified period, making it a no-fault divorce process.

• United States (USA):

In the USA, divorce laws vary by state, and some states still offer fault-based divorce options alongside no-fault divorce. Fault grounds for divorce in the USA may include adultery, cruelty, abandonment, substance abuse, or other specific misconduct that one spouse alleges as the reason for the divorce.

In fault-based divorce cases in the USA, the spouse seeking the divorce typically needs to provide evidence to support their claims. This may involve providing documentation, testimonies, or other forms of proof to convince the court that the alleged fault has occurred.

It’s essential to note that many states in the USA also allow for no-fault divorce, where couples can simply summon “irreconcilable differences” or “irretrievable breakdown” as the reason for the divorce without placing blame on one party.

The availability and specifics of fault-based divorce vary from state to state in the USA, and it’s crucial to consult the divorce laws of the specific state in which the divorce is being pursued to understand the options and requirements.

To contest the ground raised by one spouse, the other spouse has three ways to do it:

• Challenge the significance of the facts or the fulfilment of the conditions regarding the severity of the fault.

For example, a court ruled that a wife engaging in evening sports activities instead of preparing dinner and sharing it with the family did not amount to a significant and repeated breach of marital duties and obligations justifying her spouse’s act of adultery (Court of Appeal of Aix-en-Provence, February 23, 2016, Case No. 15/04030).

• Summon reconciliation occurring after the commission of the offense (as per Article 244 of the Civil Code). This reconciliation must be evident and may entail the continuation or resumption of cohabitation. Moreover, the offended spouse must exhibit a willingness to forgive.
• Summon a valid reason.

For instance, abandoning the marital home after experiencing violence or actions committed during a state of dementia (Civ 2nd, November 20, 1977).