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PacisLexis Family Law
Definition of a fault divorce
A fault divorce is a type of divorce in which one spouse alleges that the other spouse is responsible for the breakdown of the marriage due to specific grounds or breaches, such as adultery, cruelty, abandonment, or substance abuse.
In a fault divorce, the accusing spouse must provide evidence of the alleged misconduct in court to support their claim for the divorce. This is in contrast to a no-fault divorce, where the spouses can seek a divorce without having to prove that one party is at fault for the marriage’s dissolution. Fault divorces are less common in modern legal systems, as many jurisdictions now primarily offer no-fault divorce options.
People may seek for a fault divorce for various reasons, including:
- Legal requirements: In some jurisdictions, a fault divorce may be required if spouses haven’t lived separately for a certain period of time. Filing for a fault divorce may slow down the process.
- Divorce settlements: In a fault divorce, the accusing spouse may seek a more favorable division of assets or a larger share of spousal support based on the other spouse’s misconduct.
- Emotional closure: Some individuals want to assert that their partner’s behaviour was the primary reason for the marriage’s breakdown and seek emotional closure or validation through a fault-based divorce.
- Custody and visitation rights: Accusing a spouse of fault, such as neglect or substance abuse, may impact child custody and visitation arrangements. The accusing spouse may argue that the other’s behaviour is a risk to the children.
- Moral or religious beliefs: For some individuals, divorce is against their moral or religious beliefs, but they may seek a fault divorce as a way to legally end the marriage while adhering to their principles by holding their spouse accountable for alleged wrongdoing.
- Deterrence: In some cases, seeking a fault divorce may serve as a deterrent, prompting the other spouse to cooperate and agree to the divorce terms more amicably or negotiate a settlement.
It’s important to note that fault divorces can be more contentious, time-consuming, and costly than no-fault divorces, as they require presenting evidence of the breach in court.
In many jurisdictions, no-fault divorce options are available, allowing couples to divorce without assigning blame, which can lead to a smoother and less adversarial process.
Getting a fault divorce
What is a 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:
- A deliberate action that can be attributed to one of the spouses.
- This action must involve a significant or repeated breach of marital obligations.
- 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.
What are the legal rights of married couples?
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.
What is the difference between a French fault divorce and a fault divorce in the USA/UK?
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:
- Grounds for Fault Divorce:
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.
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.
- Legal Process:
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.
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.
- Role of No-Fault Divorce:
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.
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.
- Impact on Divorce Settlement:
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.
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.
In France when cease marital legal rights?
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.
What is considered as a serious violation of marital status?
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 kind of violation would render the continuation of living together unbearable?
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.
Fault-based divorce examples
What is a breach of marital responsibility?
The following actions, for instance, constitute a breach of the duty of respect within a marriage:
- Deviant and excessive sexual behaviour by one spouse, as owning pornographic materials and explicit photos involving their own children (Versailles, January 19, 2012).
- A lack of mutual respect, demonstrated through frequent and intense arguments (Civ 1st, May 23, 2006, case number 05-17.533). In this context, the Court of Cassation (Supreme Court) decision highlights that such verbal violence was considered as a manifestation of disrespect from each spouse toward the other, meaning a significant and repeated violation of the marital obligations, which in turn made it impossible to continue living together.
- One spouse’s degrading or humiliating behaviour toward the other (Civ 1st, February 1, 2012, case number 11-14.822). The principle mentioned in this case underscores that the Court of Appeal (Supreme Court) found that the evidence indicated that the spouse in question contributed to isolating the family, preventing outsiders from entering the home, denying the children contact with their grandparents, and refusing to engage in sexual relations with her husband. These acts were considered a legal basis for qualifying them as severe and repeated violations of marital obligations.
- Acts of physical and psychological violence inflicted by one spouse on the other (Dijon, May 18, 2012, case number 11/01045).
Is adultery a raison for a fault-divorce ?
French marriage law strictly adheres to monogamy, making adultery a valid ground for divorce based on exclusive faults. However, it’s important to note that breaching the duty of fidelity is not solely limited to adultery.
Other actions can also be considered as detrimental to marital fidelity, such as:
- The behaviour of a spouse who frequently attends nightclubs and exhibits flirtatious behaviour towards individuals outside the marriage, which can be deemed as “highly offensive to marital fidelity” (Civ 2nd, September 28, 2000, n° 98-18.850).
- Attempting to find a new spouse through a marital agreement (Paris, December 1, 1999).
- Engaging in communication with third parties on dating sites or social networks (Civ 1ère, April 30, 2014, n°13-16.649).
Is not providing support to my husband during challenging times considered as a ground for a divorce?
Assistance between spouses is an obligation within marriage. Consequently, the following actions will be considered as breaches:
– Failing to provide support to one’s spouse during illness (Paris, January 12, 1972).
– Persistently insisting on placing one’s spouse under an adult guardianship (Civ 2ème, November 14, 2002, n°01-03.217).”
In France, what are the actions or circumstances that go against the obligation to maintain a shared life within a marriage?
Leaving the marital home constitutes a violation of the obligation to maintain a shared household. Therefore, the spouses are required to live together until the provisional measures are ordered.
The court, specifically the family law judge, will evaluate the reasons behind the departure.
If a spouse leaves due to domestic abuse, this will not be considered as a fault. However, it is essential to provide evidence of the circumstances.
Can lack of intimacy be considered grounds for a fault-based divorce?
Refusing to engage in sexual relations is considered as desertion. Refusing to maintain intimate relations with one’s spouse can serve as a basement for fault-based divorce.
For instance, it has been held that unilaterally withholding sexual relations without apparent justification for an extended period can be considered as a fault (Court of Appeal of Aix-en-Provence, 6th Chamber B, May 3, 2011, Case No. 2011/292).
In practice, as a result of changes in the law and the recognition of spousal rape (Article 222-22 of the Penal Code), the absence of intimate relations is increasingly less likely to be viewed as a fault (Paris, April 16, 2015, Case No. 04/01023).
The spouse accused of the fault can based his defence on medical grounds, such as incurable impotence (Civ 2nd, October 8, 1970).
What actions or circumstances go against the unspecified obligations of marriage?
The following actions constitute a breach of the unspecified obligations of marriage:
- Being an alcoholic and refusing to seek treatment (Civ 1ère, January 11, 2005, n°02-20547).
- Rendering the marital home uninhabitable due to the proliferation of animals (Civ 1ère, February 23, 2011, n°09-72.079). The Court of Cassation’s judgment stated, “In exercising its sovereign authority to assess the grounds for divorce, the Court of Appeal determined that the proliferation of animals, attributed to Mrs., constituted a severe or repeated violation of marital duties, rendering continued cohabitation intolerable and justifying a divorce based on shared wrongs.”
- Engaging in unfair competition with a spouse in the same professional activity (Civ 1ère, October 17, 2007, n°06-20.701).
- Concealing mental disorders that existed before the marriage ceremony (Rennes, February 22, 1978).
- Being found legally responsible for a fault (Civ. 2nd, November 14, 2004).
- Maintaining homosexual relationships within a heterosexual marriage, considered a fault due to its “outrageous” nature, as it undermines trust, loyalty, and marital dignity (Dijon, July 6, 2012, no. 11/01842).
- Being excessively involved in union activities, resulting in frequent absences from the marital home (Douai, October 12, 1984).
- Forcing the constant presence of in-laws on one’s spouse (Riom, April 17, 2007) or preventing a spouse from maintaining relationships with their family (Metz, February 3, 2004).
- Violating the duty of loyalty by concealing a criminal past (Pau, December 14, 1998).
Can I seek a fault-based divorce because my husband is excessively devout in his religious beliefs?
Under the principle of freedom of conscience and religion, one spouse cannot prevent the other from practicing their chosen religion. However, this freedom should not excessively disrupt marital and family life.
For instance, the following actions were considered as faults:
- Refusing to participate in Christmas and Easter celebrations after a spouse’s conversion to Jehovah’s Witnesses. The Court of Cassation determined that these celebrations held primarily family significance (Civ 2ème, October 9, 1996, n°95-10.461). An excerpt from the Court of Cassation’s ruling reads, ‘The Court of Appeal, through its sovereign evaluation, found that Mrs. had, since 1989, disrupted the family and religious nature of these events. This behaviour constituted a repeated breach of marital duties and obligations, rendering the continuation of the marriage intolerable.’
- Excessively practicing one’s religion (Civ 1ère, June 19, 2007, 05-18.735).”
Can I seek a fault-based divorce because my husband does not financially contribute to our expenses?
Spouses are bound by the duty of providing financial support throughout their marriage, and they are required to contribute to marital expenses in accordance with their respective financial assets (as stated in Article 214 of the Civil Code). Failing to meet this obligation may be considered as a fault (Civ. 2nd, November 7, 1962 Bull. civ. II, no. 699).
How to establish a fault-based divorce?
How to prove a breach?
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.
- 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).
Is all evidence admissible in divorce matters?
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).
Which spouse has to bring proof of evidence?
The spouse seeking the divorce typically needs to provide evidence to support their claims.
What is a fault-based divorce in the UK and in the USA?
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.
How can a ground be contested?
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).
Fault-based divorce proceedings
How to get a fault-based divorce?
First of all, it’s essential to reach out to a family law lawyer. This is crucial because, in divorce cases, legal representation is compulsory (as per Article 1106 of the Civil Code).
Your lawyer will offer guidance tailored to your specific circumstances and formulate a defence strategy.
The process involves initiating court proceedings by serving a summons to the other spouse through a court-appointed officer (bailiff).
The specific grounds for the divorce are not outlined in the initial summons but are typically detailed in the subsequent legal submissions exchanged between the lawyers appointed by the spouses.
My wife or husband is seeking for a fault-based divorce, can I do the same?
In such a scenario, the family court judge assesses the misconduct of each party involved.
The judge can order a divorce based on the mutual faults of the spouses, as outlined in Article 245 of the Civil Code.
What are the consequences if only one of the spouses has committed a breach?
When a fault-based divorce is granted solely because of one spouse’s misconduct, the spouse who is the victim of the breach can:
- Seek compensation (as per Article 266 of the Civil Code).
- Be exempt from paying spousal support (as per Article 270 of the Civil Code).
- Seek refund of their legal expenses (as per Article 700 of the Code of Civil Procedure).
In practice, it is uncommon for damages to be awarded, and the exclusion of spousal support is also rare. The Court of Cassation is increasingly inclined to refuse spousal maintenance following a breach.
What are the financial consequences of a fault-based divorce?
When a divorce is granted solely due to one spouse’s exclusive breach, the other spouse may seek compensation under Article 1240 of the Civil Code.
The decision to grant damages depends on the family law judge.
Will a fault-based divorce affect my children in any way?
A fault-based divorce typically doesn’t impact the exercise of parental responsibility (as stated in Article 373-2 of the Civil Code).
Does a fault-based divorce prevent the payment of spousal maintenance?
If the divorce is granted solely due to the breach of one spouse, the other spouse may be exempt from making spousal maintenance payments (as per Article 270 of the Civil Code).
For instance, a case was ruled where a wife, influenced by a spiritual guide, chose to reject her husband and children in pursuit of a spiritual life, justifying the denial of spousal maintenance payments (CA Montpellier, 1st Division, Section C, February 5, 2008).
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