Fault-based divorce remains a specific procedure under French law, regularly debated and reformed, but whose fundamental principles have been reaffirmed by recent legislative and case law developments.
This article provides an overview of the conditions required to obtain a fault-based divorce, the types of faults recognized by the courts, the financial and family consequences, and the impact on children.
1. Definition and General Principles
Fault-based divorce is governed by Articles 242 to 246 of the French Civil Code.
Article 242 provides that : « Divorce may be requested by one spouse when facts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to the other spouse and make it intolerable to continue living together. »
2. Conditions for Obtaining a Fault-Based Divorce
2.1. Existence of a Fault
Two cumulative conditions must be met:
-
-
- A serious or repeated breach of the duties and obligations of marriage (respect, fidelity, support, assistance, contribution to household expenses, etc.)
- The breach must make it intolerable for the spouses to continue living together
-
The gravity of the fault is assessed by the trial judges, who have broad discretion.
2.2. Proof of Fault
The spouse seeking divorce must provide proof of the alleged facts.
All forms of evidence are admissible: witness statements, sworn declarations, correspondence, police reports, etc.
However, judges require serious and consistent evidence.
Note: The judge may grant a fault-based divorce without detailing the grievances in the decision, at the express and mutual request of both spouses, but must still confirm that facts constituting a fault exist under Article 242.
2.3. Types of Faults Recognized by Courts
Commonly accepted grounds include:
-
-
- Breach of respect: physical, psychological, or sexual violence, insults, humiliation, attacks on the dignity of the spouse or children
- Infidelity: adultery remains a fault, but its evaluation is now more nuanced, taking into account circumstances, the context of separation, and the duration of proceedings
- Failure to provide support or assistance: abandonment of a sick spouse, refusal to contribute to household expenses or children’s upbringing
- Absence or unjustified breakdown of cohabitation
- Dishonorable or disloyal behavior incompatible with marital life
-
Case law remains flexible and evaluates each situation on a case-by-case basis.
3. Consequences of Fault-Based Divorce
3.1. Legal and Financial Consequences
-
-
- Attribution of fault: Divorce can be pronounced at the exclusive fault of one spouse or with shared fault. Fault no longer has an automatic impact on property division following recent reforms.
- Compensatory allowance: The judge may refuse to grant a compensatory alimony to the guilty spouse if fairness so requires, especially when the divorce is granted at their exclusive fault.
- Damages: The innocent spouse may claim damages for particularly serious harm suffered as a result of the divorce (Civil Code, Art. 266) or under general tort law (Civil Code, Art. 1240).
- Donations between spouses: Fault may justify revoking gifts for ingratitude (Civil Code, Art. 955).
-
3.2. Impact on Children
-
-
- Parental authority: Fault has no direct impact on parental authority. Only serious circumstances (violence, psychological abuse, dangerous behavior) may justify limiting or withdrawing parental authority or visitation rights.
- Visitation rights: Visitation can only be restricted or withdrawn for serious reasons, based on the child’s best interests (violence, moral pressure, dangerous behavior). If necessary, visits can take place in a supervised contact center.
- Indirect impact: It is usually parental conflict — rather than the fault itself — that influences parental authority decisions (e.g., alternating residence, visitation rights).
-
3.3. Housing and Property
-
-
- Family home: Preferential allocation of the marital home may be requested by a spouse, even when leaving the home due to domestic violence.
- Property division: Fault does not affect the division of the marital estate, but certain behaviors (e.g., post-separation collaboration) can affect the date of dissolution of the marital community.
-
4. Examples from Case Law
Faults Often Accepted:
-
-
- Adultery, including during pregnancy
- Physical or psychological violence against spouse or children
- Family abandonment or leaving the marital home without justification
- Refusal to contribute to household expenses
- Humiliations, insults, defamatory remarks
- Serious breach of marital respect and solidarity
-
Faults Sometimes Rejected or Considered Case-by-Case:
-
-
- Alcoholism by itself is not a fault unless it makes cohabitation intolerable
- Temporary refusal of cohabitation if justified by serious fault of the other spouse
- Emotional distance or mere disagreements without proven wrongdoing
-
5. Key Takeaways
-
-
- Fault-based divorce is still relevant for serious or repeated violations of marital duties
- Judges have full discretion to assess the gravity of the facts and their impact
- Evidence must be strong, varied, and consistent
- Financial consequences are no longer automatically punitive for the spouse at fault, but compensatory allowance can be denied and damages may be awarded
- Impact on children is determined by their best interests, not merely by parental fault
-
For legal advice tailored to your situation, do not hesitate to schedule an appointment.
© Photo : AI