Is adultery always grounds for divorce in France and are damages due?

Reader question: If a partner in a marriage is unfaithful is there an automatic right to divorce in France - and do courts award damages?

Before 1975 adultery was actually a criminal offence in France and while that is no longer the case it is recognised as a fault in civil law, and grounds for divorce, potentially with the divorce being ruled to be entirely the fault of the perpetrator.

The Civil Code states that ‘spouses owe fidelity to each other, and a shared life’.

Where fault is found in divorce due to infidelity, there is also the possibility for damages to be awarded to the victim, especially if children are involved.

In cases of a Pacs, however (French civil partnership) or cohabitation (living with a partner), infidelity is not taken into account at the end of a relationship – although these are much easier to annul than a marriage.

What counts as infidelity?

It is not only actual sex that could be classed as infidelity by the family court judges who rule in such cases, though that would usually be the issue.

Case law suggests that infidelity does not have to be “consummated” by any specific act, but could also involve an intense emotional intimacy with another person, or for example, exchanging photographs of a sexual nature with another person.

However, for a ruling of divorce with sole fault on behalf of one spouse due to infidelity, judges would usually look for proof of some regularity to the behaviour, rather than a one-off act. A “one-night stand” is not enough for that, according to Catherine Bourguès, a family law specialist.

Finally, the infidelity has to be proven either through evidence (text messages, witness statements, photos, a private detective) or via a confession of the guilty party.

What does this mean for the marriage?

If a marriage is taken to the courts because of cheating – and it is proven – a family judge can award a divorce on the grounds of the infidelity, with the fault lying solely with the unfaithful partner.

However, the person could counter claim that the marriage had become intolerable, and that thus both parties were at fault.

In the former case, damages of up to several thousand euros could be awarded. Any child support or alimony payments would not, however, be increased any higher than usual and the damages are to some extent seen as ‘symbolic’.

Is fault actually needed to divorce?

French law does not actually require one party to be deemed ‘at fault’, as such, but divorce always requires an avocat or avocats to be involved and, often, a court appearance.

However, if both parties want to divorce by mutual consent, a streamlined process where the application is lodged with a notaire is also a possible route.

If either party refuses to divorce or does not agree on the terms for custody and maintenance of children or property matters, then one party will have to issue proceedings against the other.

This still leaves time for the other party to accept the principle of a divorce, if they wish, otherwise the court will look at the question of fault or other grounds such as two years’ separation.

What about in the case of a Pacs?

Ending a pacs or civil partnership in France is much easier than a marriage, and does not require the involvement of a court.

A document (signed by both parties) can be sent to the local mairie or to the notaire who registered the Pacs, announcing the end of the partnership.

If the desire to break the civil partnership is one-sided, you must use a commissaire de justice (bailiff, formerly a huissier de justice) to inform your ex-partner of the decision.

Only in cases of disagreement over property will a family judge get involved in the separation.

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