Divorce on the ground of fault
Why chose this?
The reform of the divorce procedure applicable from the 1st of January 2021 does not change the nature of the fault that can be used as a ground for a divorce. It must constitute of a serious or renewed violation of the rights and obligations of marriage that can be blamed on the other spouse.
Divorce on the ground of fault (divorce pour faute) generally relates to situations in which violence has taken place against the spouse or the children, or if a spouse has abandoned the marital home, has committed adultery, or has been abusive towards the spouse or the children. It is important to know that this situation will not allow the victim to get a better financial outcome in the context of the divorce (prestation compensatoire or compensatory allowance).
The main difficulty encountered in this type of divorce is providing enough evidence of the grievances raised against a spouse. 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.
What are the steps?
If proceedings start after the 1st of January 2021
Divorce starts with a writ of summons (assignation en divorce). Warning! At this stage, under penalty of inadmissibility, this writ of summons must not mention the ground of divorce, i.e., no reference must be made to grievances; they will be exposed and explained later within the first pleadings (conclusions).
The date and time of the first hearing called “Orientation and Interim Hearing” appear on the divorce summons. The defendant spouse who receives this summons must then appoint a lawyer to represent her/him at the hearing and for the rest of the proceedings. If the spouses or one of them make requests for interim measures (applicable during the divorce proceedings), the presence of both spouses is required. However, if no such request is made, the spouses do not need to attend and are represented by their respective lawyers. This new option is particularly interesting for spouses who live abroad. At the hearing, the family-law judge takes note of the parties’ claims or any agreements on interim measures. Following this hearing, the judge issues an Interim Measures Order which organizes the life of the spouses and their children during the divorce procedure (alimony, residence, visitation and accommodation rights, etc.).
The procedure continues through pleadings (conclusions) and documents (pièces) exchanged between lawyers according to a procedural timetable determined by the family-law judge in charge of the case. Even if at the start of the procedure, only one of the spouses wished to divorce, it is still possible to find an agreement and to express it in documents drawn up by the respective lawyers of the spouses, via so-called “concordant” conclusions. In this case, each party appends to its conclusions a declaration of acceptance of the principle of marriage breakdown, or the act of lawyers confirming the agreement of the spouses on the principle of marriage breakdown. The judge can approve partial or complete agreements of the spouses. Its decision (jugement) is communicated to you through your lawyer and you can decide whether to appeal it.
If proceedings have started before the 1st of January 2021:
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 divorce on the ground of fault 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 divorce on the ground of fault 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