During a divorce, one of the spouses can sometimes suffer damage that cannot be repaired by the compensatory allowance. It is then possible to claim damages. The damage he suffers must, however, meet very specific criteria for it to be recognized.
Legal foundations
Two legal bases exist for a spouse to claim damages for his spouse. The choice of this basis is determined by the origin of the damage: either it is the consequence of the dissolution of the marriage, or it is independent of it and depends on the behavior of the ex-spouse.
If the damage results from the dissolution of the marriage (article 266 of the Civil Code)
This procedure is valid in two types of divorce.
In a fault divorce , a claim for damages is possible for the innocent spouse. The divorce must have been pronounced at the exclusive fault of his spouse. If the divorce is pronounced with shared wrongs, the request is impossible.
In a divorce for permanent alteration of the marital bond , the claim for damages is reserved for the spouse who did not wish for a divorce and who did not request it. Even if the divorce is pronounced at his exclusive fault, his right remains.
The claim for damages can only be requested on the occasion of the divorce action. They are paid in the form of capital or an annuity.
The judge will then take into account the nature of the damage which must be a consequence of “particular gravity” . The criterion of “particular gravity” is left to the appreciation of the judge and must constitute an exceptional or even shocking character.
Moral damage
To claim moral damage, the victim spouse must prove that the dissolution of the marriage has resulted in a serious pathological consequence. One can imagine, for example, an innocent husband (in the context of a fault-based divorce) suffering from a serious depression following the end of his marriage.
A husband was thus ordered to pay 3049 euros in damages to his ex-wife, because he had ended his marriage to go and live with a mistress after twenty-eight in life together. (CA Rouen, 3rd chamber, January 29, 1998)
A wife was also awarded 1,500 euros in damages after being left behind by her husband with three dependent children and low income. (Court of Cassation, 1st civil chamber, April 25, 2006)
Economic harm
The damage can also be economic, when it cannot be repaired by the allocation of a compensatory allowance . The compensatory allowance repairs a disparity in the standard of living between the spouses caused by the divorce. It may happen that there is no disparity in the standard of living between the spouses (therefore no need for a compensatory allowance) but that serious prejudice occurs.
For example, damages were awarded after one of the spouses lost his job in the family business following the divorce or was forced to move in with his children after the divorce, or had to face creditors alone while her ex-spouse had become insolvent.
A wife had to pay 2,000 euros in damages to her husband, after leaving the marital home and leaving him with two children, one of whom had personality disorders. This situation had also harmed his career, forcing him to privilege his family to the detriment of his professional choices. (Cour de cassation, 1st civil chamber, September 12, 2012)