Divorce for irreversible breakdown of the marital relationship: conditions and procedure after one year

Sophie lives in Altkirch, Marc in Cernay. They have been married for fifteen years and have not lived together for two years. An amicable divorce? Impossible: Marc flatly refuses. So can Sophie divorce despite him? Yes, thanks to the divorce for irreversible breakdown of the marital relationship. This legal mechanism, provided for by Articles 237 and 238 of the Civil Code, allows the marriage to be dissolved as soon as the spouses have been de facto separated for at least one year. But be careful: you still need to prove this separation and comply with certain formalities. The decision of the Court of Appeal in Nancy of 5 March 2024 clarifies these rules – and may save you months of proceedings.

Have you been living apart from your spouse for more than a year, but he or she opposes the divorce? Are you afraid that your attempts at reconciliation will hinder your application? Or are you simply wondering whether your situation meets the legal criteria? This decision answers these questions. An analysis, with concrete examples drawn from the Mulhouse area.

The facts: a story that happens every day

In this case, Mrs X, owner of a flat in Altkirch, and Mr Y, living in Cernay, have been married since 2008. Since February 2022, they have been living separately: Mrs X left the marital home after a series of disagreements. In September 2023, she applied to the family court judge for divorce on the basis of Article 237 of the Civil Code – irreversible breakdown of the marital relationship. Her request: to have the de facto separation of more than one year established, and that the marital relationship has broken down irretrievably.

For his part, Mr Y opposed. He argued that the separation was not 'irreversible', because they had exchanged a few messages and there was an attempt at reconciliation in August 2022. According to him, this attempt interrupted the one-year period. He also cited an exceptional moral prejudice, as the divorce would deprive him of his survivor's pension. The first-instance court rejected his defence and granted the divorce. Mr Y appealed.

The Court of Appeal in Nancy confirmed the decision. It held that the brief attempt at reconciliation (two days) did not re-establish the community of life. The one-year period had indeed passed at the time of the application. As for the moral prejudice, it was not 'exceptional' – it was the normal consequence of a divorce. Mr Y was therefore ordered to pay the costs. The judgment is now final.

The reasoning of the court – broken down

The Court relies on Article 237 of the Civil Code: 'Divorce for irreversible breakdown of the marital relationship may be sought by one spouse when the spouses have been de facto separated for at least one year.' The judges immediately explain this provision: the only condition is the duration of the separation, regardless of who caused it or whether the other spouse contests it. Intention to divorce is not required – which distinguishes this divorce from divorce for fault.

Next, the Court examines Mr Y's argument regarding the attempt at reconciliation. It recalls that, according to settled case law (Civ. 1st Chamber, 2018), a mere attempt at reconciliation, brief and without effective resumption of cohabitation, does not interrupt the one-year period. There must be a genuine resumption of married life – shared home, intimate relations, joint budget – which was not the case here.

Then, the Court dismisses the opposition based on exceptional prejudice. Article 238 allows the judge to refuse divorce if it would cause the other spouse 'exceptionally serious' prejudice (physical or moral). But the Court recalls that this prejudice must be abnormal and disproportionate. Losing the survivor's pension is a financial disadvantage, but not exceptional prejudice – especially as Mr Y could claim spousal maintenance. The decision thus confirms the tendency of the courts to interpret this exception strictly.

Finally, the Court validates the evidence provided by Mrs X: neighbours' statements, absence of a joint tax return, separate rent receipts. These elements are sufficient to prove continuous de facto separation.

What this means for you – practically

This decision secures the procedure for spouses who have been living apart for more than a year. If you are in this situation, you can apply for divorce for irreversible breakdown, even if your spouse refuses. Here is what this implies depending on your profile:

• For the spouse seeking divorce: you must provide proof of one year's separation. Gather the following: proof of separate residence, witness statements, exchanged correspondence, absence of cohabitation. Note: a mere attempt at reconciliation (even a weekend) does not affect the time period, but it is best to consult a solicitor.
• For the spouse opposing: you cannot block the divorce simply by refusing. Your only possible remedies: prove that the separation did not last one year (e.g., effective resumption of cohabitation), or demonstrate exceptional prejudice, which is very rarely accepted. Concrete example in Cernay: a husband might lose the right to remain in the family home if it is in his wife's name – but this is not exceptional prejudice.
• For both: divorce for irreversible breakdown can be sought even if you have children. Parental responsibility and custody are dealt with separately. Note: this type of divorce does not settle financial matters (spousal maintenance, division of assets) – a separate agreement or court order will be necessary.

Four tips to avoid this type of dispute

• 1. Keep all evidence of the separation. As soon as you live separately, keep your rent receipts, energy bills, accommodation certificates, etc. If you are in Altkirch and your spouse remains in Cernay, have the situation recorded by a bailiff or a witness.
• 2. Do not attempt a reconciliation lightly. If you are considering resuming cohabitation, be aware that a mere rapprochement may interrupt the one-year period. If in doubt, seek advice from a solicitor before moving back under the same roof.
• 3. Anticipate the financial consequences. Divorce for irreversible breakdown does not prevent a claim for spousal maintenance. If you have joint assets (property, accounts), have them valued quickly to avoid future conflict.
• 4. Consult a solicitor as soon as the situation becomes strained. An initial consultation allows you to know your rights, assess whether you meet the conditions, and avoid mistakes that delay the procedure. It is often cheaper than a long court case.

Further reading: related case law and developments

This decision follows a consistent line. The Court of Cassation has already ruled (Civ. 1st Chamber, 12 June 2019, No. 18-17.234) that an attempt at reconciliation must be serious and lasting to interrupt the period. The courts are strict: a mere exchange of text messages or an evening together is not enough. Furthermore, a judgment of the Court of Appeal in Colmar (15 January 2021) had already refused to accept exceptional prejudice for loss of pension rights. The trend is therefore clear: divorce for irreversible breakdown has become the standard route for long-term separated couples. In the future, we can expect the legislature to further simplify the procedure, perhaps by reducing the one-year period to six months.

Summary and next steps

FAQ:

• Am I eligible for divorce for irreversible breakdown? Yes, if you have been de facto separated for at least one year, without prolonged interruption. It does not matter whether your spouse agrees.
• Can I oppose this divorce? Only if you prove that the separation did not last one year (for example, resumption of cohabitation) or if the divorce would cause you exceptionally serious prejudice (very rare).
• What are the procedural timelines? Usually 3 to 6 months for a first decision, depending on the court's workload. An appeal can take an additional year.
• How much does a divorce for irreversible breakdown cost? Expect solicitor's fees of £1,500 to £3,000, plus court fees (around £200). If you are eligible for legal aid, these costs may be covered.
• What if my spouse refuses to leave the home? You can apply to the judge for a non-conciliation order and permission to reside separately. The de facto separation will then be recorded.

Next steps

In a similar situation? A 30-minute initial consultation with Maître Perucca (£45) may save you months of proceedings – and often much more. Book an appointment →