An adult suffering from mental or physical deterioration will benefit from a protection regime. But, under certain conditions, this will not be an obstacle to divorce.
As a reminder, an adult under guardianship is generally incapacitated. All the acts of everyday life will be carried out by his tutor, while a person of full age under curatorship is struck with a special incapacity, which means that he can act alone to perform certain acts of everyday life but only to others, he must be assisted by his curator to protect his pecuniary and legal interests.
If it is the spouse of the protected adult who exercised the functions of tutor or curator, the judge will appoint a curator or ad hoc tutor to assist or represent him during the proceedings (article 249-2 of the Civil Code ).
The principle is that an adult placed under a protective regime at the time of the request (article 249-4 of the civil code), cannot divorce by mutual consent or by accepted divorce. Or, the two cases of divorce for which free and informed consent is required.
A protected adult may however divorce for permanent alteration of the matrimonial bond or for fault and will be represented during the procedure by a lawyer.
The adult placed under guardianship
If it is an adult placed under guardianship who requests the divorce, prior measures are imposed. Before any action, it is necessary to obtain the opinion of the attending physician and that of the protected adult who must, whenever possible, be heard by the family council and the guardianship judge (article 249 paragraph 1 of the civil code) .
The initial request must be made, in the name of the adult placed under a guardianship regime, by his guardian with the authorization of the family council or the guardianship judge.
If it is the spouse of the protected adult who requests the divorce, he must bring an action against the guardian who will represent the adult throughout the procedure (article 249 paragraph 1 of the civil code).
The adult placed under curatorship
Whether under a simple or reinforced curatorship regime, the protected adult can perform everyday acts alone, however he must be assisted by his curator to divorce (article 249 paragraph 2 of the civil code).
Note: He is assisted and not represented, this means that it is the protected adult who will take the steps, the curator will have to sign all the documents next to that of the adult.
If it is the spouse of the protected adult who requests the divorce, the action will be directed against the adult under curatorship who will be assisted by his curator.
The adult placed under judicial protection
During this transitional period, which is used to determine the protective regime adapted to adults, it will not be possible for them to divorce until the guardianship judge has ruled and the protective regime has been put in place.
However, the guardianship judge may take all provisional or urgent measures (article 249-3 of the civil code).
Likewise, a protected adult must obtain the authorization of the guardianship judge to acquiesce to the divorce judgment (and therefore to waive the means of appeal) or to withdraw from an appeal (article 1120 of the code of civil procedure).
To know: In a case of divorce for fault, if the applicant is the spouse of the protected adult, it will be difficult for him to prove the existence of a fault based on the serious and renewed violation of the duties of marriage. Indeed, how to blame a person whose judgment and mental capacities are impaired.
Unless it can be demonstrated that the fault was prior to the establishment of the protective regime, the judge may refuse the application for divorce for fault.
It will then be possible to do a procedure for permanent alteration or a legal separation.