Are you considering getting a divorce? Are you wondering if you will receive more money from your ex-spouse by filing for a divorce for fault?

Divorce for fault: Which benefits?

A long and trying procedure for nothing more

A divorce for fault is a much longer procedure than a divorce by mutual consent. It will take between one and a half to three years of procedure. Your lawyer will file a request for a divorce for fault before the Tribunal de Grande Instance of your family residence.

You and your spouse will be summoned to a hearing in order to attempt conciliation. After hearing you separately, then together in the presence of your respective lawyers, the judge will issue an order of non-conciliation. After the non conciliation order, you will be able to bring the matter before the family court judge by a writ of summons. The judge will then pronounce the divorce either to the exclusive fault of your spouse or to your shared fault.

Before the reform of the divorce, the divorce for fault was governed by a law of 1975. Under this law a divorce for fault had a pecuniary interest which is no longer the case today.

Divorce for fault had financial advantages, in particular because the guilty spouse lost the benefit of donations or matrimonial advantages that had been granted to him, they could not obtain the payment of a compensatory allowance and they had to pay damages in reparation for the “material and moral prejudice that the dissolution of the marriage” caused the spouse.

What will you gain by obtaining a divorce for fault?

Despite the 2004 reform, divorce for fault has some specific consequences compared to divorce for permanent alteration of the marital bond, if it was pronounced to the exclusive detriment of your spouse.

Damages difficult to obtain

You can claim damages, but this claim is not specific to a fault-based divorce, it is simply a matter of engaging the tort liability of your spouse. You will have to prove a fault, a prejudice and a causal link between the fault and the prejudice.

There are also damages specific to divorce for fault, but the conditions for granting them are very difficult to meet. Article 266 of the Civil Code specifies that “damages may be awarded to a spouse in reparation for the particularly serious consequences that they suffer as a result of the dissolution of the marriage (…) when the divorce is pronounced to the exclusive detriment of their spouse”.

The difficulty is that the prejudice must result directly from the dissolution of the marriage. You can only allege prejudices directly linked to this dissolution. Thus, no prejudice has been granted on the basis of article 266 of the Civil Code, for the wrongful behavior of a spouse during the divorce proceedings or for old and repeated conjugal violence, because it is not a direct consequence of the dissolution of the marriage. The only prejudice that will allow you to obtain compensation is often a moral prejudice, in particular the moral and emotional loneliness. The evaluation of the prejudice has nothing to do with the amount of your resources or those of your spouse.

Not paying compensatory allowance

Lastly, the judge can refuse to grant a compensatory allowance to the spouse against whom the divorce is pronounced with exclusive blame (Article 270 of the Civil Code).

Example of damages awarded by the judge for a divorce for fault with exclusive blame

• For an adultery lasting 3 years before the separation

The wronged spouse was awarded 2,000 euros in damages but still had to pay a compensatory allowance of 60,000 euros to the spouse who was unfaithful (Versailles Court of Appeals March 17, 2016)

• For insults, harassment, and acts of violence and a lack of participation in family expenses

The spouse received only 4,000 euros in damages (Court of Appeal of Rennes January 5, 2016)

• For adultery lasting 10 years with the birth of a child out of wedlock while the marriage lasted 30 years

The spouse received 5000 euros in damages for anxiety-depression syndrome and feelings of humiliation due to the infidelity of the other spouse and the dissolution of a marriage after a long period of living together (Court of Appeal of Limoges 2 May 2016)

It must be noted that divorce for fault does not present a financial windfall. The procedure of divorce for fault is long and trying. The main interest of divorce for fault is above all a moral interest, because it allows you to have the justice establish that you have no fault in your separation.

You wish to divorce but you do not know which procedure to choose? You can contact an AGN lawyer in your area, who will advise you on the best steps to take.