A divorce can be pronounced for fault at the request of one of the spouses under article 197 1° of the Civil Code, when the acts attributed to one of the spouses constitute:
- A serious or repeated breach of the duties and obligations of marriage making it intolerable to continue living together. For example, a breach of the duty to provide support, fidelity, assistance, or respect.
If the proof of a wrongful conduct by both spouses is established, the divorce will be pronounced for common fault against both. If the proof of a wrongful conduct of one of the spouses is established, the divorce will be pronounced against this spouse for exclusive fault.
In this case, it is important to know that this type of divorce has its own consequences for the spouse against whom the divorce is granted:
- He or she loses all the benefits that his or her spouse had granted him or her by marriage contract or otherwise. However, the other spouse retains the benefits granted by his or her spouse, even if they had been stipulated to be reciprocal.
- He or she is not entitled to any compensatory allowance. However, he or she may obtain compensation on an exceptional basis only if it appears manifestly contrary to equity to refuse him or her any pecuniary compensation following the divorce.
- He or she may be condemned to pay damages
under two distinct grounds of prejudice:
(i) In compensation for the prejudice suffered by the spouse because of the dissolution of the marriage;
(ii) In compensation for the prejudice resulting from wrongful conduct. This ground of prejudice may also be awarded in the event of a divorce pronounced for common fault against both spouses.
In a recent decision, a wife against who the divorce was pronounced for her exclusive fault was deprived of any right to compensatory allowance even though she was unemployed and had cared for the children on her own to encourage her husband's career.
It is therefore essential not to initiate divorce proceedings without first identifying and anticipating the potential risks, to adapt the claims made in consequence.
Originally published 14 June 2023.
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