In marriage, fidelity between spouses is a central concept. This is an obligation inherent to marriage, the violation of which can be punished civilly. In the Civil Code, the duty of fidelity between married spouses arises not only from the obligation of community of life and marital duties, but it is expressly provided for in the text of the Civil Code. Thus article 212 of the Civil Code states: “Spouses owe each other mutual respect, fidelity, help and assistance. »
What exactly does the obligation of fidelity in marriage cover? Is adultery still considered a mistake? Does adultery necessarily involve a sexual act? What evidence can be produced in the context of adultery?
PROCAP DETECTIVE aims, through this article, to clarify certain preconceived ideas about the duty of fidelity and to lift the veil on the role of the private detective in matters of adultery.
What does the obligation of fidelity in marriage cover?
Fidelity in marriage: a more general meaning than the purely carnal dimension
One would be tempted to believe that fidelity in marriage refers only to the sexual dimension. In reality, as it emerges from the judicial tradition, the notion of fidelity in marriage covers several characteristics; it is not reducible to carnal dimensions alone, although sexual exclusivity is a substantial and predominant criterion. Fidelity also involves a set of broader behaviors and obligations, such as marital loyalty, community of life (living together), mutual respect and devotion between spouses.
Duty of loyalty: a public order provision
Fidelity in marriage can be seen as a sort of limitation of the individual freedom of the spouses, it is a so-called public order provision in that it is imperatively imposed on the couple from the moment they are married , they cannot legally derogate from it except by adapting it tacitly. A provision of public order is a rule which draws its force, not from the will of the parties, but from the text of the law: thus fidelity, set out in article 212 of the Civil Code, is required to imperative manner to people as soon as they get married. For example, a married couple practicing avowed libertinism remains subject to the obligation of marital fidelity and liable for this obligation despite the agreement of the spouses, the libertarian connivance of the spouses in no way annihilates the obligation of fidelity, but they only moderate the scope in the event of litigation. In addition to being a provision of public order (imperative), fidelity is also an indivisible obligation, in the sense that it is inseparable from the other obligations set out in the Civil Code inherent to marriage.
Duty of fidelity: an obligation unenforceable against third parties
The duty of fidelity only applies or is specific to married couples; third parties are not affected. It is thus said that fidelity is an obligation relating to the married couple, excluding third parties, who cannot claim a violation of the duty of fidelity in a relationship of which they are not a party. Thus, if married spouses are justified in denouncing their partner's infidelity as a violation of the duties and obligations of marriage, third parties, even if they witness incriminating facts or dishonorable situations, cannot under any circumstances take legal action and claim a violation of the duty of loyalty. This is the case of in-laws who notice the infidelity of the son-in-law or daughter-in-law, or even friends who, in good faith, would like to take legal action in place of the injured spouse. , no provisions of the Civil Code provide for legal action allowing them to act against the author of infidelity. The very relative nature of the duty of fidelity also makes it impossible to hold third parties liable for participation in or complicity in adultery. Thus, no provision of the Civil Code provides for action or sanctions towards third parties complicit in adultery, in particular towards the lover or mistress.
Fidelity is a notion absent in other types of union, such as cohabitation or common-law union. In the PACS, the notion of fidelity, although absent from the text establishing the PACS, is not non-existent. Indeed, if fidelity in the marital sense does not exist in the PACS, there nevertheless exists a "duty of loyalty" between civil partnership partners whose characteristics sometimes suggest a form of marital fidelity, and the violation of which can be punished, not under the duty of loyalty, but as an action constituting disloyalty in the contractual sense of the term. The PACS, being a contract, is deemed to be executed in good faith. Infidelity in the PACS can in certain cases fall under contractual disloyalty and justify termination, compensation for damage and the award of damages.
Is adultery still considered a marital sin? Is it an automatic cause for divorce?
As a breach of the duty of fidelity, adultery is still today considered to constitute a fault. Marital deception is antithetical to the duty of fidelity and contravenes article 212 of the Civil Code. However, although it is still considered a fault, adultery is no longer, since 1975, an automatic cause of divorce.
Until the major divorce reform of July 11, 1975, adultery was considered a criminal offense as well as a "peremptory" cause for divorce: the sole proof of adultery automatically resulted in divorce to the fault of the offending spouse. It was thus said that the wrongful nature of adultery was intrinsically linked to it, and this, if proven, forced the judge to automatically pronounce the divorce to the fault of the offending spouse, with sometimes inequality in the consequences, which were often more severe for the offending wife than for the husband.
Since the decriminalization of adultery in 1975 and the introduction of article 242 of the Civil Code, adultery, although still prohibited in marriage, is no longer considered an automatic cause of divorce, the judge now has greater latitude in assessing the scope of the fault and its consequences. He can just as easily retain adultery as a cause of divorce or rule it out or downplay its seriousness in view of the elements of the case, or even excuse it or share it with the faults of both spouses. Where before the 1975 reform the judge was limited to pronouncing divorce as soon as adultery was proven, now the role of the judge is more complex and his power of appreciation is more extensive: the wrongful nature of adultery is assessed in the light of the marital context (e.g.: habits of the couple; faults committed by the requesting spouse; circumstances excusing or mitigating the seriousness of the faulty behavior, marital collusion, etc.).
In summary, if adultery still remains today a behavior incompatible with the obligations of marriage and sanctioned on a civil level, the intrinsically wrongful character and the automatism of the sanction have been removed.
Is it necessary for there to be a sexual act to speak of adultery?
Contrary to popular belief, adultery, as a breach of the duty of fidelity, is not reducible to the sexual act. Although the carnal dimension is important, it is not the only criterion characterizing infidelity. Adultery can also be only virtual, or even platonic in nature, such as an extra-marital romantic relationship devoid of acting out or physical relationship.
Moreover, from a judicial point of view and in relation to the evidence, the sexual act is not a necessary condition (nor sufficient for that matter) to characterize adultery. A romantic date, a night's stay in a hotel, repeated encounters, physical contact and gestures of a romantic nature are sometimes enough to characterize adultery, without requiring the display of a sexual act strictly speaking. In fact, and unless one is guilty of violation of privacy or violence, proof of the sexual act as an attribute of adultery is an evidentiary enterprise almost doomed to failure. Not only does the liberalization of morals no longer justify the obligation to provide proof of a sexual act to speak of adultery, but in addition judicial practice no longer conditions adultery on proof of a passage to sex. carnal act. At most, justice takes into consideration, when it comes to characterizing adultery, various facts describing an illegitimate intimate relationship rather than a sexual act itself.
Is adultery a common phenomenon?
In France, infidelity in marriage is one of the main reasons why couples separate. Indeed, for a third of divorced couples (30%), the discovery of infidelity is the main cause, ahead of non-participation in common life, domestic violence, abandonment of home or incompatibility of projects. marital. However, although adultery is a predominant factor in break-up, less than 10% of couples choose the contentious path of fault-based divorce. In the 2000s, the share of divorces due to fault accounted for 40% of divorce cases. Does this mean that fault-based divorce is set to disappear? The answer is no, divorce for fault will continue to exist for the simple reason that it is the preferred form of divorce for the settlement of contentious separations, punishing marital faults (adultery, violence, abandonment of home, etc.) in as long as they are the cause of the breakup.
Can adultery be proven by any means?
In matters of divorce , and more generally in civil litigation, the principle is that of freedom of proof. Article 259 of the Civil Code provides: “The facts invoked as causes of divorce or as defenses to a request may be established by any method of proof…” . However, even free, proof in civil law must obey certain conditions developed by case law, which are the criteria of lawfulness , loyalty but also proportionality . When it is a question of providing proof of adultery, it is necessary to respect the conditions of admissibility of the proof in order not to see the elements rejected from the debates.
Let us clarify these eligibility conditions:
Condition of lawfulness: proof must be lawful, that is to say, in accordance with the law. Evidence obtained by violation of the law, either by coercion, violence, threats, blackmail, corruption, or in violation of the individual's rights to respect for his or her private life, is inadmissible. Thus, illegally breaking into your spouse's phone to extract photos or messages is strictly prohibited, as is placing a tracker or microphone on your spouse's vehicle to follow their movements. Evidence resulting from such processes will be rejected as obtained fraudulently. They may even, if necessary, expose their author to criminal sanctions and payment of damages.
Condition of loyalty: the proof must be fair. Evidence obtained by trickery, entrapment or deception is also inadmissible. Thus, trapping one's spouse in order to prove adultery is strictly prohibited, the resulting evidence will certainly be rejected. Many sites or agencies today offer testing services, temptress type, with a view to assessing the degree of fidelity of a person, and incidentally to prove infidelity in the event of an act. It should be noted that such processes do not allow the production of admissible evidence in the French judicial system, where evidence must be obtained fairly, thereby excluding any trick or trap.
Condition of proportionality: the proof must be obtained using means proportionate to the aim sought. Disproportionate is defined as any means whose implementation, both from a qualitative and quantitative point of view, causes excessive harm in relation to the intended aim: thus surveillance which lasts for weeks to prove adultery could potentially be qualified as disproportionate. because of its duration.
Provided that they have been obtained in compliance with the conditions set out above (lawfulness, fairness and proportionality), the elements set out below can be produced to prove adultery. This list is obviously not exhaustive:
Testimonials from third parties (excluding descendants, i.e. children)
Letters, letters, diary;
Hotel bills, transport tickets, restaurant tickets
SMS, emails
Social media content
Bailiff's report
Audio recording (legally obtained)
Photographs
Private detective reports
Is it legal to use the services of a private detective to prove adultery?
In divorce disputes, it is common for one of the spouses to request the services of a private detective in order to gather evidence of marital misconduct, particularly adultery or a wrongful extra-marital relationship. Using an evidence professional, such as a private detective, can be very useful during divorce proceedings, and constitute a powerful lever for success. The evolution of the law but also of judicial practices makes the private detective one of the major players in matters of divorce, and establishes its usefulness more than ever in civil disputes.
Nowadays, private detectives occupy an increasingly prominent place in the legal landscape, and are recognized as full-fledged players in the field of evidence law. Their reports are not only recognized in court, but they can also make all the difference in a legal proceeding.
Using the services of a private detective to prove adultery is therefore not only legal, but it is also strongly recommended. Indeed, as an investigative professional and expert in evidence law, the private detective is competent to investigate the existence of an extra-marital relationship, establish proof of adultery, but also ensure admissibility elements obtained with regard to the law. Through the investigations he carries out, the private detective will help his client in the creation of a solid file and seek out the elements of evidence which are essential for the needs of the procedure. Its know-how, particularly in the field of discreet surveillance and shadowing, constitutes a real asset as well as a success factor.
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