Adultery during divorce proceedings

Adultery during divorce proceedings

Are spouses still held to the duties and obligations arising from marriage during divorce proceedings (articles 212 and following of the Civil Code)? 

The Court of Cassation recently ruled in a recent April 1, 2015 ruling (civ. 1, appeal no. 14-12.823): while the divorce of the spouses had been pronounced with shared fault, the wife appealed the decision of the Court of Appeal on the grounds that she invoked her extramarital relationship, which occurred after the divorce request (and more specifically after the non-reconciliation order of the family court judge). 

Some evidence of said adulterous relationship was provided by a private detective, at the request of the husband. The detective produced among other things sufficiently explicit photographs which then served as proof of the extramarital relationship. 

The Court of Cassation then recalled and confirmed the deductions of the Court of Appeal: 

“The filing of the divorce petition does not confer immunity on spouses still bound by the ties of marriage from the offenses they may commit against each other; the court of appeal correctly deduced that it was possible to invoke, in support of the divorce request, a grievance after the non-reconciliation order.” 

Thus, spouses remain bound by the duties and obligations of marriage during the divorce procedure; from the request to the final judgment. And among these duties, loyalty is part of it! 

In addition, Article 242 of the Civil Code provides that: “Divorce may be requested by one spouse when facts constituting a serious or repeated violation of the duties and obligations of marriage are attributable to their spouse and make the continuation of common life unbearable.” 

This law article is also applicable when facts constituting a fault are committed during the divorce proceedings.