The fault divorce is one of the 4 divorce cases that currently exist in France.
The law defines this case as follows: “divorce may be requested by one of the spouses when the facts constituting a serious or renewed violation of the duties and obligations of the marriage are attributable to his spouse and make it intolerable the maintenance of the common life”.
All of the above conditions must be met, but the Family Justice Judge will then assess whether the fault really exists and whether it is serious enough to be successful.
The fault must be intentional (without necessarily having an intention to harm) and committed during the marriage (and even during the divorce proceeding).
I can only mention here some examples of faults (most common) retained by the jurisprudence:
- violation of the fidelity obligation (adultery),
- failure to cohabit (abandonment of marital home), duties relating to the upkeep and upbringing of children,
- physical, moral violence.
If the judge considers that there is harm to the responsibility of both spouses, he can pronounce the divorce to the shared wrongs.
In case of reconciliation of the spouses and at any time, they can turn the procedure of divorce for misconduct procedure more “consensual” (mutual consent, acceptance of the principle of the breakdown of marriage).
The main thing to remember about this divorce procedure is:
- the applicant spouse may claim damages from the other spouse,
- you have to be certain, when you engage in this type of procedure, that you have serious justifications to present to the judge, which is not always obvious.
Indeed, it is not enough simply to invoke any fault!
It is also necessary to be able to demonstrate the existence and the gravity with supporting documents (complaints, handrails, medical certificates in case of violence in particular, testimonies written by witnesses etc.).
Your lawyer will determine with you, based on the evidence you will be able to provide, whether the fault divorce procedure is best for you.
The risk, if you do not succeed in justifying the fault with the Judge, is that he refuses outright to pronounce the divorce on this basis.
You will then have to start the procedure again …
So do not be mistaken.