Divorce for Fault: Evidence and Consequences on Compensatory Payment

Imagine the scene: in Lingolsheim, Bas-Rhin, Marie and Jacques have been married for fifteen years. One day, Jacques discovers that Marie has been having an extramarital affair for several months. Trust is broken, and Jacques initiates divorce proceedings for fault. But how does one prove this breach of marital duties? And above all, will this fault affect the spousal maintenance that Marie might claim? These are questions that haunt many couples, from Sélestat to Strasbourg. The decision of the Montpellier Judicial Court of 12 January 2024 (Case No. 63256) provides valuable insight on these two points.

Divorce for fault, provided for in Article 242 of the Civil Code, requires that one spouse has seriously or repeatedly violated the duties and obligations of marriage, making the continuation of married life intolerable. Adultery, abandonment of the marital home, violence, serious insults: there is no shortage of grounds. But proof is often tricky. The Montpellier judges ruled on a dispute where the central issue was precisely that of the means of proof and their financial consequences.

So, concretely, what elements should be used to establish the fault? And how does this influence the amount of spousal maintenance? This is what we will examine, through this analysis adapted for residents of Bas-Rhin and beyond.

The Facts: A Story Like Many Others

Mr X, a 52-year-old salesman residing in Sélestat, and Mrs Y, a 48-year-old teacher, married in 2005 in Strasbourg. Their union produced two children, now adults. Since 2018, the couple has been going through a crisis. Mrs Y reproaches her husband for repeated absences due to his work, but especially for an adulterous relationship with a colleague. In 2021, she leaves the marital home and moves to Lingolsheim.

She files a petition for divorce for fault with the family court judge. In support of her claim, she produces screenshots of WhatsApp messages exchanged between Mr X and his colleague, as well as statements from neighbours reporting having seen the couple together on several occasions. Mr X disputes this: he invokes the right to privacy and claims that this evidence was obtained unlawfully, by intrusion into his phone. He requests that the divorce be pronounced on the grounds of shared fault, or even exclusively his wife's fault, whom he accuses of having abandoned the home without legitimate reason.

The court therefore had to rule on two preliminary issues: the admissibility of the evidence produced by Mrs Y, and then, on the merits, the characterisation of a serious breach of marital duties. At first instance, the judge dismissed the message screenshots as obtained unlawfully, but upheld the statements as sufficient. He granted the divorce for fault on the husband's sole fault. Mr X appealed, but the Montpellier Court of Appeal confirmed the judgment in 2024, specifying the conditions for proof and the consequences on spousal maintenance.

The Court's Reasoning — Explained

The court first examined the lawfulness of the evidence. Under French law, the principle is that evidence is free in divorce matters (Article 259 of the Civil Code), but it must not be obtained by violence or fraud. The issue of fairness of evidence is delicate when personal messages are collected without consent. Here, the judges considered that Mrs Y had accessed her husband's phone without his authorisation, which rendered the screenshots inadmissible. However, third-party statements (neighbours, friends) are admissible forms of evidence, provided they are precise and detailed.

On the merits, Article 242 of the Civil Code provides that "divorce may be applied for by one spouse when facts constituting a serious or repeated violation of the duties and obligations of marriage are attributable to the other spouse and render the continuation of married life intolerable." In this case, the consistent witness statements demonstrated that Mr X was having a public adulterous relationship, which constitutes a serious breach of the duty of fidelity. The divorce was therefore granted on his sole fault.

Next, the court examined Mrs Y's claim for spousal maintenance. Article 270 of the same Code provides that it may be granted to the spouse who demonstrates a disparity in their respective living conditions after the divorce. But attention: can the fault of the claiming spouse be an obstacle to this maintenance? The answer is no, in principle. Spousal maintenance is not punitive in nature, but compensatory. Even if the spouse has committed a fault, they may still be entitled to it if the disparity is established. Here, the court found that Mrs Y, who had reduced her working hours to raise the children, suffered a significant loss of income compared to her husband. She was awarded spousal maintenance of 30,000 euros, payable over 5 years. This decision confirms that fault does not automatically exclude the right to compensation, but it may reduce the amount (depending on the circumstances).

This reasoning aligns with the case law of the Court of Cassation (Civ. 1st, 10 March 2010) which specifies that fault is only one factor among others in determining spousal maintenance, and not a ground for automatic exclusion.

What This Changes for You — Practically

If you are married and considering a divorce for fault, this decision directly concerns you. First, to prove the fault, be aware that unfair evidence (such as searching the spouse's phone or computer) is likely to be excluded. It is better to rely on witness statements, bailiff's reports, or freely accessible documents (invoices, joint bank statements). A concrete example: in Sélestat, a husband who suspects his wife of infidelity may hire a private detective (within legal limits) or gather statements from neighbours who have seen suspicious comings and goings.

Secondly, know that your spouse's fault does not necessarily deprive you of spousal maintenance if you are in need. Even if you are the "guilty" party, you may obtain it if you demonstrate an economic disparity. For example, a spouse who abandoned the home but sacrificed their career for the children may legitimately claim compensation. However, if the fault is particularly serious (domestic violence), judges may reduce the amount or refuse it on grounds of equity.

Finally, keep in mind that time limits are important: a petition for divorce for fault must be filed within 6 months of becoming aware of the facts (unless the violation is ongoing). In Lingolsheim as elsewhere, if you delay, your claim may become time-barred.

Four Tips to Avoid This Type of Dispute

• Gather lawful evidence as soon as the facts arise: rather than searching personal belongings, use bailiff's reports, SMS messages you have received (not those you have stolen), statements from external witnesses. Unfair evidence will be excluded and could skew the entire case.
• Consult a lawyer from the first difficulties: in family law, every month counts. Early legal advice can help you choose the right procedure (divorce for fault, accepted divorce, or mutual consent) and avoid evidentiary errors. In Sélestat or Strasbourg, do not hesitate to book an appointment for a personalised analysis.
• Document the economic disparity: if you are claiming spousal maintenance, keep a record of your income, assets, and demonstrate how your career has been hindered by the marriage (children, relocations, etc.). Judges need precise figures to determine the amount.
• Consider family mediation: before embarking on a long and costly court procedure, mediation can help reach an agreement on the principle of divorce and its financial consequences. This reduces tension and often allows for more amicable relations, especially where children are involved.

Further Reading: Related Case Law and Developments

The Montpellier decision is part of a jurisprudential trend favouring a flexible interpretation of the link between fault and spousal maintenance. The Court of Cassation, in a judgment of 27 March 2019, had already held that "the fault of the spouse does not deprive them of the right to claim spousal maintenance, but may be taken into account to reduce the amount" (Civ. 1st, No. 18-14.123). Here, the court applied this principle with a balanced approach.

Conversely, some courts, particularly at first instance, have sometimes entirely excluded spousal maintenance in cases of serious fault (e.g., notorious adultery). This divergence shows that trial judges have broad discretion. The current trend, however, is not to treat fault as an absolute barrier, except in cases of proven domestic violence or particularly reprehensible behaviour.

For the future, we can expect the reform of divorce (2019 law) to further emphasise equity. Judges will increasingly tend to examine the economic situation of the spouses independently of fault, to avoid leaving a spouse in destitution.

In Practice: What to Do

If you wish to initiate a divorce for fault:

1. Gather admissible evidence: prioritise witness statements, bailiff's reports, official correspondence. Avoid evidence obtained by intrusion (phone, computer).
2. Consult a lawyer to assess the viability of your claim. The fault must be serious and proven.
3. Anticipate spousal maintenance: even if you are the victim, you may have to pay it if you are in a better financial position. Prepare your accounts.
4. Respect the time limits: the action for divorce for fault is subject to a 6-month limitation period from the date of knowledge of the facts (unless the violation is ongoing). Do not delay.

Are you in a similar situation? A first 30-minute consultation with Maître Perucca (€45) can save you months of proceedings — and often much more. Book an appointment →