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Being faithful, an obligation that continues during the divorce proceedings

AT As Valentine’s Day approaches, divorcing spouses should be reminded that even if they fall in love with a third party, they have an interest in remaining faithful to their spouse until the judgment pronouncing the dissolution of their marriage. Otherwise, they can be blamed for a fault, as the following case reminds us.

At the beginning of 2014, Mr. and Mr.me X obtain a non-conciliation order from the family court judge, taking note of their separate residences. Shortly after, Mr.me X asks for a divorce on the sole fault of her husband. She claims that he cheated on her, as early as 2013, and produces, to prove it, the emails he has exchanged, since that date, with another woman.

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Mr. X protests that his affair only started “that in 2014 », is just “after the non-conciliation order”. The Bordeaux Court of Appeal replied, on September 10, 2019, that“it did not matter that this extramarital relationship had taken place after the non-conciliation order, the current divorce proceedings not exempting the spouses from the obligation of fidelity”.

Shared wrongs

This jurisdiction does not however give satisfaction to Mr.me X. Her wealthy husband produced the report of a bailiff, who came – after authorization from the judge – to make a statement of adultery in the early morning of March 11, 2015. The report indicates that “in the master bedroom, the large double bed was warm evenly with the molded shape of two bodies on each side, the room being fitted with a wardrobe containing, on one side, male clothes of size XL and M and, the other side, women’s clothes ».

Mme X replies that this liaison took place ” more than a year after the non-conciliation order. The court replies to her, as to her husband, that“it did not matter that this extramarital relationship had taken place after the non-conciliation order, the current divorce proceedings not exempting the spouses from the obligation of fidelity “. She pronounces the divorce with shared wrongs, and does not grant Mme X a compensatory allowance as high as she wished.

Read also Article reserved for our subscribers Divorce: we must remain faithful between separation and judgment

Mme X appeals in cassation. She maintains that the Court of Appeal deprived its decision of a legal basis, by refraining from “to investigate whether the anteriority of the adultery perpetrated by the husband and the faults committed by him throughout the life together were of such a nature as to remove any faulty character from the acts reproached to the wife”.

February 10, 2021 (19-24.543)the Court of Cassation rejected her request, without taking the trouble to write a word of explanation, the case not raising, according to her, any new question of law (it specifies that“there is no need to rule by a specially reasoned rejection”).

To understand his decision, Mr.me X should probably refer to thearticle 212 of the civil codeaccording to which the spouses owe each other “fidelity”…

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