Divorce on the ground of fault
Why choose this?
Fault-based divorce (divorce pour faute) generally relates to marriages where there have been incidences of desertion, adultery, repeated harassment of a spouse, or violence towards a spouse or children. It is important to bear in mind that the victim of the fault will not necessarily be awarded a higher compensatory allowance (une prestation compensatoire). However, the judge assigned to the case may order the guilty party to pay damages to their spouse as compensation for the suffering caused. The main difficulty encountered in this type of divorce is providing enough evidence of the grievances raised against a spouse, and it is important to bear in mind that the law prevents children from testifying in favour or against one of their parents. It is also worth mentioning that spouses are allowed to request that the reasons for the divorce are not shown in the divorce decree. This type of divorce is often very difficult to endure for the spouses as it fuels the conflicts between them for the entire duration of the proceedings and sometimes longer. However, this may be the only option if no amicable agreement can be reached between the parties.
What are the steps?
To start these proceedings, a petition for divorce (une requête en divorce) is filed by the lawyer of the spouse who is requesting the divorce. A few weeks or months later (depending on how busy the courts are), the spouses are summoned by the family-law judge (un juge aux affaires familiales) for a conciliation hearing, (une audience de conciliation). The judge will try to conciliate the parties, but an agreement is very rarely reached at this hearing. However, the judge may propose a family mediation and, with the consent of the spouses, designate a family mediator. During the hearing, the judge considers the personal circumstances of each spouse and any children with a view to making provisional arrangements that will apply only for the duration of the proceedings know as ‘interim measures’ (des mesures provisoires). The judge’s ruling is called the non-conciliation order (une Ordonnance de Non Conciliation – ONC), and it will rule on aspects such as:
- Who stays in the marital home
- Parental authority
- Residence of any children
- Right of the non-custodial parent to regular visits and overnight stays (right of contact)
- Maintenance (periodical payments) for the children and spouse if applicable
- Division of household expenses.
A spouse has the right to appeal against the order. For example, questioning the amount of maintenance to be paid or the child custody arrangements. The ONC gives the spouse who petitioned for divorce (the petitioner) the right to summon the other spouse to a divorce hearing. This writ of summons (l’assignation) is notified to the other spouse by way of a bailiff (un huissier de justice). Following the writ of summons, the divorce case is allocated to a judge. This can be the same judge that ruled on the interim measures or a different judge. They will have to rule on issues regarding the children and the financial aspects of the separation. The spouses must exchange their pleadings (des conclusions) through their lawyers, along with evidence to justify and support the claims made by each spouse. The judge allows each lawyer a certain amount of time to conclude and respond to the opposing arguments, and to communicate all of the supporting evidence. Once the judge considers that the case is ready to be heard, they will set a court date for the lawyers’ closing speeches (les plaidoiries). As with all other divorce hearings, this takes place behind closed doors. The spouses’ attendance at this hearing is not compulsory. At the end of the hearing, the judge then sets a date on which they will make his final decision (usually one or two months later). The parties can appeal against this decision (le jugement). This can be a ‘general appeal’, which means that it can be about both the principle of the divorce and its consequences. However, it can also be solely concerned with the principle of the divorce or any consequence of it, such as the amount of compensatory allowance (la prestation compensatoire) to be paid. The judge may pronounce a fault-based divorce against one spouse (un divorce aux torts exclusifs de l’un des époux) or, alternatively, may decide that both parties were to blame and decree a divorce by mutual fault (un divorce aux torts partagés). Be aware that it is rare for the proceedings for a fault-based divorce to last less than one and a half years. This can have a significant effect on cost.
Want to ask a question?
For a confidential discussion about your situation or requirements, you can contact Peggy Lethier by telephone or email: Contact