Fault & Contested Divorces

There are several types of contested divorce in France. All follow the same court procedure and can be converted into an uncontested divorce at any time. You can divorce even if your spouse refuses.

Divorces on the grounds of adultery, for instance, often begin as contested proceedings. A spouse who discovers infidelity is rarely inclined to engage in constructive dialogue to rebuild the marriage or to immediately pursue a non-adversarial separation.

Under French law, divorce is a legal right, and a spouse can petition for divorce even if the other spouse does not agree to the breakdown of the marriage. In such cases, the process becomes a contested divorce. The same applies when the future ex-spouses disagree on the consequences of the separation.

There are three types of contested divorce: divorce for fault (divorce pour faute) / divorce by acceptance of marital breakdown (divorce accepté) / divorce for definitive alteration of the marital bond (divorce pour altération définitive du lien conjugal).

Filing for Fault-Based Divorce - Including Adultery

Grounds for Fault-Based Divorce

Divorce for fault is the most contentious judicial procedure. It is invoked when a breach of the marital obligations established by the French Civil Code  has occurred (respect, fidelity, support, assistance, and cohabitation) and is asserted by one spouse against the other.

• Spouses owe each other mutual respect; any form of domestic violence is strictly prohibited under French law.
• Fidelity consists of refraining from cheating on one's wife or husband.
• Support and assistance entail the obligation to provide for a spouse's needs. This is not purely financial; each contributes through their work to material support within the household, as well as moral support in all life situations.
• Finally, cohabitation requires living together under the shared marital roof.

Consequently, infidelity, harassment, persistent insults, and domestic abuse can serve as grounds for a fault-based divorce petition. These grounds are subject to judicial interpretation and evaluated in context: in this type of divorce, faults are highly circumstantial. An act of adultery may not necessarily be deemed a legally compensable fault by the Family Court Judge (JAF).

In theory, abandoning the marital home prior to the preliminary hearing was historically considered a fault. In practice, judges rarely penalize a spouse for leaving the family residence when cohabitation has become unbearable. It is often preferable to leave the home rather than remain at all costs and escalate conflicts. A fault divorce is granted either with exclusive fault assigned to one spouse, or with shared fault, depending on the judge's assessment.

Why File for a Fault-Based Divorce?

A fault divorce procedure pursues two primary objectives:

• Obtaining judicial recognition that one spouse has been wronged by the other,
• Having the court adjudicate the consequences of the divorce.

1) Obtaining Judicial Recognition that One Spouse is the Injured Party

The petitioner in a fault-based divorce seeks a ruling declaring the divorce solely to the exclusive fault of the other spouse. It must be understood that in France, winning a fault divorce holds primarily psychological value. Moreover, fault proceedings are burdensome and emotionally taxing, as both parties exchange mutual accusations. Each party must simultaneously present claims and defend against counterclaims.

The strategic advisability of pursuing fault-based grounds must therefore be thoroughly weighed with your lawyer.

2) Adjudicating the Consequences of Divorce

Just like other contested divorces, once the issue of fault is decided, the judge rules on all practical arrangements of the divorce, including:

• The wife's continued use of the husband's surname after divorce
• The amount of compensatory allowance (prestation compensatoire)
• Child custody and residence arrangements
• Sharing of child maintenance and education expenses

Further questions also arise concerning the division of marital property and the allocation of the marital residence.

Compensation / Damages in Fault-Based Divorce

Judicial recognition of fault by the Family Judge (JAF) provides a psychological milestone to turn the page and formally identify the responsible party. Surprising though it may seem, a spouse found at fault may still be awarded a compensatory allowance. Fault no longer impacts the calculation of the compensatory allowance or the calculation of child support / alimony. Fault-based divorces have declined sharply according to Ministry of Justice statistics.

Evidence presented to the court does not always conclusively prove the alleged wrongs, and the statutory criteria for obtaining damages are strictly circumscribed. Article 266 of the French Civil Code provides that:

Damages may be awarded to a spouse in compensation for consequences of exceptional gravity suffered as a result of the dissolution of the marriage, either when that spouse was the defendant in a divorce granted for definitive alteration of the marital bond and had filed no cross-petition, or when the divorce is granted to the exclusive fault of the other spouse.

Fault grounds do not affect ancillary divorce rulings (except in extraordinary circumstances). Thus, a spouse may be judged solely at fault (for instance due to infidelity) yet still receive a substantial compensatory allowance from the "victim" spouse. Financial consequences of divorce are completely decoupled from fault.

Today, rulings assigning exclusive fault are rare. In 2023, fault-based divorces accounted for only 9% of Family Court decisions, compared to 46% for definitive alteration of marital ties and 44% for accepted divorce. Damages awarded are generally modest, ranging from €1,000 to a few thousand euros. This amount must be weighed against the legal fees and average duration of fault proceedings (frequently exceeding two years).

How Contested Divorce Proceedings Unfold

All three forms of contested divorce follow the same procedural sequence: summons / preliminary hearing / formal writ of summons / procedural preparation phase (mise en état) / final trial hearing / judgment. Importantly, at any point during contested divorce litigation, procedural bridges allow parties to convert their case into an uncontested divorce by mutual consent, which is faster, less adversarial, and less costly.

How Much Does a Contested Divorce Cost?

Legal fees for contested divorce proceedings vary. Some attorneys charge on an hourly basis, while others offer flat-fee packages. Our firm prioritizes flat-fee arrangements, providing financial certainty and peace of mind for spouses already dealing with the emotional stress of separation. In return, clients are asked for full cooperation to ensure maximum efficiency throughout the case. No hidden charges for file setup or photocopies are applied.

On the other hand, bailiff (commissaire de justice) fees and court mediation costs are billed directly by those professionals. If you instruct an attorney not admitted to the local Judicial Court's bar, postulation agency fees will also apply.

Various Practical Matters

When should you leave the marital home?

In theory, it is advisable to wait for the judge's interim measures order authorizing separate residences. In practice, it may be necessary and preferable to relocate immediately if the home situation becomes untenable.

When can you resume using your maiden name?

You never legally lose your maiden name. A married surname is merely a customary name (nom d'usage). You may resume using your birth surname at any time.

Can you communicate with your future ex-spouse's lawyer during divorce?

While you may initiate contact, professional ethical rules strictly prohibit an attorney from communicating directly with an opposing party who is already represented by counsel.

By Claire Quétand-Finet Family & Divorce Lawyer - Versailles Bar Association

PhD in Private Law · +10 years of experience in family & divorce law · University Lecturer for continuous legal expertise

See also:
Asset division during divorce -  Sole or joint custody - Appealing a Family Court ruling