Marriage imposes obligations on both spouses. Their relationships are governed by Articles 212 to 215 of the Civil Code.
If the spouses were too moved during the wedding ceremony, it should be remembered that these articles were brought to their attention by the registrar.
These duties do not cease during the divorce procedures as regularly reminded by the judges of cassation (Cass. civ., 1st of April 14, 2010, n ° 09-14.006; Cass. civ., 1st of January 13, 2016, n ° 15-13.602 and Cass. civ., 1st of 9 November 2016, n ° 15-27.968 ...
The non-conciliation hearing and the non-conciliation order are not enough to release the spouses from their obligations.
A violation of the duties of marriage (adultery, etc.) committed after the judicial separation of the spouses ordered by the Family Affairs Judge will constitute a fault which may be added to the list of grievances until the final pronouncement of the divorce.
What are these duties?
The duty of cohabitation
Cohabitation implies common life and carnal relationships " corpula carnalis', it is conjugal duty. Sexual abstinence and the absence of an intimate relationship are, according to case law, a violation of the duties of marriage.
But cohabitation does not mean living under the same roof, since article 108-1 of the civil code provides that the spouses can by mutual agreement live in two separate domiciles, but they remain required to share a community of life and of life. 'interests
Before the law of June 11, 1975, the choice of family home belonged to the husband. Now this choice must be made jointly.
Family housing benefits from special protection. A spouse cannot have the main accommodation alone (article 1424 of the civil code for the community regime), nor sell it, even if it is his or her own. However, this protection does not extend to the second home.
Without the consent of his spouse, a spouse cannot make any act of disposal on the family home (sale, termination of the lease, donation, etc.). Unless he was authorized by the judge to perform the act alone.
In the event of an agreement on the sale of immovable property belonging to one of the spouses, the spouse will be asked to give his agreement but, he will not be a co-contractor and therefore, he will not participate in the conclusion of the contract. deed of sale.
Failing this, the spouse whose opinion has not been requested may, within one year of becoming aware of the act or in the year following the pronouncement of the divorce, request its annulment in court.
If the accommodation is a rental, article 1751 of the civil code lays down the principle of co-ownership of the lease in favor of both spouses.
Note: If the spouses occupy separate homes, the protected home will be where the spouses lived together before the separation, where the children live… This is where the community of life is located.
Protection of furniture that adorns the home
Article 534 of the Civil Code grants protection to furniture in the same way as housing.
Both own goods and common goods will be concerned. A spouse will not be able to sell a piece of furniture without the consent of his spouse
The rule is laid down by article 215 paragraph 3: "The spouses cannot one without the other have the rights by which the accommodation of the family is ensured, nor the furniture with which it is furnished".
The duty of loyalty
With the digital age and the constant evolution of the means of communication, the obligation of loyalty today takes several forms.
Adultery must be considered as a moral obligation, therefore it does not matter whether there was a romantic relationship, purely platonic or a carnal relationship for it to be constituted.
This is why case law admits that a relationship maintained at a distance, on the internet (emails, social networks, etc.) is sufficient to characterize infidelity.
The sanction of adultery will be the pronouncement of divorce at the exclusive fault of the offending spouse. Since the divorce reform of May 26, 2004, there is no longer a hierarchy between faults. Adultery at the top of the pyramid could cost a lot of money in damages and alimony. It is now an ordinary fault.
The duty of help
This concept covers pecuniary obligations between spouses. They are manifested by the contribution to the costs of the marriage which, once the couple has separated, will be maintained in the form of alimony or a compensatory allowance.
The principle is that the spouses participate in proportion to their respective faculties. They can plan their contributory shares in advance in a marriage contract.
It is about pooling their resources. This contribution can take several forms, it is not only a question of paying a sum every month into a common account, but also of participating in the running of the home, picking up the children from school, taking them to extra-curricular activities. ...
So, yes, looking after the household and the children is a contribution to the expenses of the marriage. If a woman gives up her professional activity to devote herself full time to her household, this may give rise to remuneration.
Food, clothing, vehicles, holidays, etc. are also included in the wedding expenses.
If a spouse avoids his obligation to contribute to the expenses of the marriage, he may be forced to do so in court.
This competence is devolved to the Family Affairs Judge and framed in Articles 1069-1 and 3 of the Code of Civil Procedure.
The judge will fix the contributory part of the defaulting spouse and his spouse will be able, as a creditor, to enforce the recovery of the sum (seizure on remuneration, direct payment, etc.) in the same way as alimony.
The duty of assistance
Each spouse must provide moral support to their spouse, a duty of humanity and of listening, such as taking care of them in illness, comforting them ...
A spouse who is too often absent from home, who excessively multiplies personal activities (sport, political or union activities, etc.) and abandons his spouse is at fault.
Article 213 of the Civil Code specifies that the spouses together ensure the material and moral management of the family. It is the obligation to ensure the education of children but also to ensure food, care ...
All of these duties constitute parental authority.