What is a fault-based divorce?
Article 242 of the Civil Code defines a fault as a serious or repeated violation of the duties and obligations of marriage, making cohabitation intolerable.
The family affairs judge will assess whether the behavior attributed to the spouse constitutes a fault, taking into consideration the personal situation of the spouses, their habits, their family beliefs, and the organization of their marital life.
The most frequently cited grounds for divorce are: adultery, abandonment of the marital home, failure to contribute to marital expenses, violent or reprehensible, or insulting behavior.
How to prove the fault?
Once engaged in this type of divorce procedure, faults and grievances can be proven by any means. The spouses and their lawyers compile their dossier.
Evidence can be provided through confessions, letters, bailiff’s reports, attestations, or testimonies from third parties.
However, the evidence must be lawful and not obtained through fraud or violence. Otherwise, the obtained pieces will be inadmissible.
Evidence cannot be gathered by trapping the spouse: for example, emails or phone conversations recorded without the spouse’s knowledge will not be accepted as they constitute unfair evidence.
Additionally, individuals wishing to testify in favor of a spouse should know that giving false testimony is punishable by imprisonment and a fine.
In practice, judges are more demanding regarding the proof of fault and may even dismiss a spouse’s or the spouses’ claims for a fault-based divorce if the evidence provided is insufficient. Moreover, if a spouse wishes to obtain damages, they must demonstrate that they suffer a particularly severe moral injury due to the divorce.
In conclusion, the 2004 law played a significant role in pacifying divorce procedures, which was one of its primary objectives. Finally, it should be noted that fault-based divorce has a number of drawbacks:
– This type of divorce is lengthy and costly, as it is impossible to determine the duration and cost of the procedure.
– It is often experienced as a trial for the spouses and their children.
– It compromises the ex-spouses’ relationships and hampers the smooth functioning of parental relations.
Therefore, lawyers must play an active role in pacifying procedures and recommend amicable or semi-amicable procedures when the situation allows.
