DIVORCE FOR FAULT?

Divorce for fault?

What happens to divorce where there are concurrent claims?

Under the terms of Article 242 of the Civil Codethe divorce may be requested by one of the spouses when acts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to his or her spouse and make it intolerable to continue living together.

It is therefore up to the parties to prove the alleged faults that make it intolerable for them to continue living together.

Pursuant to Article 246 of the Civil Codeif a request for divorce on grounds of permanent impairment of the marriage bond and an application for fault are made concurrently, the judge first examines the application for fault. If he rejects the latter, he will then rule on the application for divorce on the grounds of definitive alteration of the marriage bond.

In this case (Divorce for fault?) :

Mrs Y stated that she had been a regular victim of domestic violence, which had been confirmed by a forensic doctor. She pointed out that, even if her complaint had been dismissed, a civil fault could be found justifying the application of Article 242 of the Civil Code.

Mr X, who contests the alleged offences, points out that the complaint lodged in October 2016 by Ms Y did not give rise to any proceedings. He pointed out that the injuries he had sustained had occurred long ago and could not be attributed to him.

The Court notes that Mrs Y has submitted the following documents to the Court :

1.

For example, the complaint of 21 October 2016 lodged by Mrs Y states that shortly after the wedding :

-Her husband became jealous and locked her up in the flat, refusing even to let her go shopping with him,

-This meant that he was only allowed out once a month to take their daughter to the doctor.

2

She points out that he closed the windows and curtains, forcing her to live in the dark.

In her words:

-He refused to let her use the washing machine, forcing her to wash her clothes by hand.

-and hasn't bought her a single item of clothing in two years.

She said that Mr X regularly hit her, even when she was pregnant. He would slap, punch and kick her, and drag her along the floor. At the end of the hearing, she added that he burnt her hands, arms and feet with matches.

She claims that the most recent violence took place that very morning at the hospital where their daughter was admitted. On that occasion, he tripped her, causing her to fall. He then grabbed her by the hair and shook her hard.

She explained that her husband was angry with her. She had informed him that she had seen a social worker and was going to lodge a complaint against him.

3

A medical certificate drawn up by the Doctor on 25 October 2016 retained an ITT of 5 days along these lines:

"A high, median, frontal, dyschromic scar measuring 2 cm long, which the patient relates to old burns inflicted by her husband.

On the upper limbs: multiple dyschromic scars retracted in places, said to be related to burns caused by matches and arranged as follows:

Two scars on the posterior aspect of the right forearm measuring 2 and 1.5 cm in length,

Two scars on the back of the right hand, one of which is rounded opposite the 2nd centimetre radius. The other, opposite the 3rd and 4th rays, is oblong and measures 2.5 cm long,

A rounded scar on the lower third of the left forearm, measuring 1.5 cm long,

A sub-centimetre scar on the back of the left hand, opposite the head of the 2nd ray .

It therefore concludes that :

-Old skin scars on the forehead and arms which may be burns,

-the absence of recent integumentary lesions

-evidence of chronic stress.

4.

Accommodation certificate from the Olympe de Gouges association dated 21 November 2016 from 16 November 2016,

Complaint of 12 January 2019. In her letter, Mrs Y stated that her husband had refused to return her personal belongings. In particular, his clothes and administrative documents,

Complaint dated 19 June 2017 against his mother-in-law and sister-in-law. They allegedly physically assaulted her in a supermarket.

The Court pointed out that it was up to Mrs Y to prove the grievances she was alleging.

It is clear from the medical certificate submitted that the scars consistent with burns identified by the medical certificate are old. Consequently, it is impossible to know whether they post-date Mrs Y.'s marriage.

In addition, the forensic pathologist found no recent lesions. This contradicts Mrs Y's statements.

Moreover, no proceedings have been brought against Mr X and Ms Y has produced no other evidence to support her claims. X and Mrs Y has not produced any other evidence to support her assertions, even though the most recent acts of violence that she described allegedly took place in a hospital and, given the extent of the violence, she could have asked for help and, at the very least, had her injuries recorded, whereas some time earlier she had not hesitated to tell her husband that she was going to lodge a complaint and had contacted a social worker, which shows that she had not hesitated to confront him.

Solution chosen:

In the light of all these factors, as the old injuries noted by the doctor could not be attributed to Mr X and no recent traces were found, Mrs Y did not prove that she had been subjected to violence.

Finally, with regard to the last complaint lodged against the husband concerning the belongings she had allegedly left behind and which had therefore not been returned to her, it must be noted that, here again, Mrs Y has not provided any evidence to support her assertions that Mr X refused to return her belongings to her.

Consequently, the judgment referred to should be confirmed insofar as it dismissed Mr X's application for divorce on exclusive grounds and granted the divorce on shared grounds, as the couple have been separated since November 2016 without either of the spouses having attempted to resume living together since that date or having provided the other with any material or moral support constituting the maintenance of the marriage bond.

Toulouse Court of Appeal, 1st Chamber, Section 2, 23 June 2020, RG no. 18/043

Divorce for fault?