Divorce and the concept of fault

Divorce and the concept of fault

"I would like to know what is meant by the abolition of the notion of fault in divorce under the new matrimonial law. What kind of fault are we talking about? Adultery?

Monique, Geneva

Under the old law, divorce could be granted on the basis of fault committed by one of the spouses. The concept of fault included adultery, but also other problems within the couple for which one of the spouses could be held responsible. For example, a spouse who could prove his or her spouse's infidelities could obtain a divorce in this way, even if his or her spouse opposed the divorce.

Since the new divorce law came into force on 1 January 2000, the situation has changed considerably, since the conditions for divorce and its consequences no longer refer in principle to the notion of fault. At present, a spouse may apply for - and obtain - a divorce on his or her own if he or she can show only that he or she has been living apart from his or her spouse for more than two years. The marriage is then dissolved irrespective of any consideration of fault.

Before this two-year period, however, the couple can only divorce if both spouses agree on the principle of divorce and file a joint petition, even if they do not agree on child custody rights, maintenance contributions, etc. If one of the spouses refuses to divorce, they will have to wait until the end of the two-year period before the other can file a unilateral petition for divorce. If one of the spouses refuses to divorce, however, it will be necessary to wait until the end of the two-year period before the other spouse can file a unilateral petition for divorce. It should be noted that the new law even provided for a four-year period. However, the legislator quickly realised that, in practice, this sometimes led a spouse to 'bargain' his or her agreement to divorce on more favourable terms than those to which he or she would normally have been entitled, which is why this period was reduced to two years from 1 January 2004.

Where the spouses have not yet been living separately for two years and only one spouse wishes to divorce, he or she may try to prove that there are serious reasons - not attributable to him or her - why the continuation of the marriage is unbearable. It is only in this case that the concept of fault could still be considered to have a place in the new divorce law. However, case law only accepts such requests in an extremely restrictive manner, for example in cases of physical or psychological violence within the couple, but not in cases of adultery.