NOTa shadow of divorced spouses believe they can start their lives again without waiting for a final judgment. Error: the duty of loyalty to which they are bound, under article 212 of the Civil Code, continues until the marriage is dissolved, as the following case recalls. On July 25, 2005, Isabelle X (the first names are changed) leaves the marital home, after having co-signed with Eric, her husband, an agreement confirming their de facto separation. On October 3, 2005, she initiated divorce proceedings.
After having obtained from the judge a non-conciliation order, Isabelle requests that the divorce be pronounced at the exclusive wrongs of Eric, the latter having according to her "Committed adultery". She produced a letter to the proceedings, "From the Panorama hotel-restaurant", in Alsace, "From which it emerges" that Eric spent there over Valentine’s Day weekend in 2006 with another woman. The Colmar Court of Appeal stated on March 2, 2010 that "The circumstances in which this letter reached the hands of Mme X are not clear " ; but she specifies that "The husband does not establish that the wife used fraud or violence to obtain it", so she can take it into account, like "Any mode of proof", as permitted by article 259 of the Civil Code.
Mail and photos
Now, she notes, during this Valentine's Day, "The spouses were still married, and the judge had not yet authorized them to reside separately, so that, notwithstanding the spouses' special agreements, life in the matrimonial home had not yet ended". Indeed, "If it is true that the agreement signed on July 25, 2005 included the expression" legal separation "", as Eric points out, "It is no less clear from article 212 of the Civil Code that the duty of loyalty continues until a divorce is declared".
The court observes that "Adultery is confirmed, if need be, by three photos produced during the proceedings, which Mr. X admits were taken at the marital home", and they show it "Happy in the presence of a woman other than his wife, cheek to cheek and passing his right arm over the right shoulder of this person while his left hand is on the upper chest of the person concerned".