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Marital faults: the most frequently recognized breaches in divorce proceedings

Procap Detective Toulon
PROCAP DETECTIVE TOULON - The marital faults most recognized by judges in divorce proceedings.

When two people join in marriage, they make a commitment to each other to respect a set of duties and obligations. Among these obligations, let us cite the duty of “respect, help, assistance and fidelity” (art. 212 of the Civil Code); the community living obligation (art. 215 of the Civil Code); common contribution to household expenses (art. 214 of the Civil Code); common contribution to the education and maintenance of children (art. 213 of the Civil Code). Failure to observe these duties and obligations may constitute a fault capable of being invoked as a cause of divorce.

What are the criteria for marital misconduct?

Before responding to list the most frequently recognized marital faults, let us briefly summarize the criteria for assessing a marital fault as they emerge from the Civil Code (art. 242), and from case law in family matters:

1st criterion – The fault must be a proven (characterized) violation of the duties and obligations of marriage (to be distinguished from faults not relating to the duties and obligations of marriage, e.g. fault towards third parties);

2nd criterion: The fault must be sufficiently serious: the seriousness of the fault can be assessed either by its specific characteristics (a sufficiently serious violation or behavior), or by its repeated nature (a repeated violation or behavior). These two criteria are not necessarily cumulative, but can be invoked separately (“or”).

3rd criterion: The violation necessarily makes maintaining life together intolerable and is incompatible with the duties and obligations of marriage.

4th criterion – The fault must be a materially characterized fact or failure (to be distinguished from simple suspicions or presumptions).

Finally, let us recall that the notion of fault is subject to the sovereign assessment of the judge and that it is not a “peremptory” cause of divorce (automatic cause). Indeed, the judge has the option, when requesting divorce for fault, to retain the fault as the reason for the divorce, dismiss it, excuse it or share it with the faults of both spouses.

What are the marital faults most frequently recognized by judges?

1 – Infidelity

First of all, from a statistical point of view, let us remember that more than half of divorces are caused by confessed or hidden infidelity. Adultery, whether occasional (one-night stand, flirting), recurring (long-term relationship), physical (carnal knowledge) or even virtual (dating site, long-distance extra-marital relationship) is considered to be constituting a violation of the duty of fidelity, which may be punished by the declaration of divorce at the sole fault of the offending spouse. However, let us point out that adultery, even noted or recognized, is no longer a conclusive cause of divorce; the judge can always rule it out or reduce its seriousness with regard to the elements of the case (e.g.: habits of the couple; faults committed by the requesting spouse; circumstances excusing or mitigating the seriousness of the wrongful behavior, etc.).

2- Failure to live together

Living together in marriage is understood not only as the obligation of common residence, but also the obligation of living together, a euphemistic expression referring to the obligation to have sexual relations with one's spouse. . Abandoning the marital home is also considered a breach of the duty to live together. However, just like adultery, the refusal of a sexual act is left to the sovereign appreciation of the judge who apprehends it with regard to the situation of the couple, their lifestyle, but also their marital history.

3 – Breaches of the duty of mutual respect (domestic violence)

Spouses are bound by a duty of respect. Domestic violence , whether physical, verbal or psychological, constitutes violations of the duty of mutual respect. Likewise, insulting, degrading, humiliation, insulting remarks, threats, moral harassment, regardless of whether they are uttered or carried out privately (in private (behind the closed doors of the home) or in public), constitute breaches of duty. of mutual respect. Adding to this behaviors of excessive jealousy, possessiveness, control over a spouse, etc.

4 – Breach of duty to provide aid and assistance

The fact that one of the spouses obliges themselves to support or help their spouse in the event of difficulties (professional, material, in the event of illness, etc.) is considered a marital fault.

5 – Failure to contribute to the costs of marriage, maintenance and education of children

The fact that a spouse does not contribute to household expenses, for example by retaining their salary for their personal expenses and their exclusive well-being. But also the absence of participation in the education and maintenance of children, including behavior that deteriorates the balance of the home or is likely to compromise the health, education or safety of children, can also constitute a mistake.

6 – Excessive behaviors and addictive habits

Practices and behaviors of an excessive or addictive nature may be considered as marital faults, such as: alcoholism, smoking, excessive practice of sport, religion, excessive outings, as long as these practices and behaviors harm the balance of the couple. and home.


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