In a decision of April 11, 2018, the Court of Cassation recalled that the husband's previous adultery did not excuse the wife's subsequent adultery, approving in this respect the Court of Appeal to have pronounced the divorce on the basis of shared faults. The Court also recalled that a termination indemnity paid after the Non-Conciliation Order is not part of the community but of the spouse's personal patrimony and must thus be taken into account in the determination of the compensatory allowance.
In this case, the wife objected to the divorce being pronounced for shard faults on the grounds that her adultery was later than that of her husband, and that the latter therefore had to bear full responsibility for their divorce, it being thus pronounced to his exclusive wrongs. The Court of Appeal, approved by the Court of Cassation, considered that, on the contrary, the wife's adultery was also a fault for divorce and was not excused because of the prior fault of the husband, the divorce to be pronounced on the basis of shared faults.
In addition, the Court of Appeal had held that the termination indemnity received by the husband after the non-conciliation order fell into the community and that there was therefore no disparity in the living conditions of the parties justifying the allocation of a compensatory allowance for the benefit of the wife.
However, the date on which the divorce judgement takes effect in the relationship between spouses is in principle that of the non-conciliation Order pursuant to Article 262-1 of the Civil Code, when one of the spouses does not did not ask that it go back to an earlier date corresponding to the actual separation of the spouses. After that date, spouses married under the legal regime of the community of property are thus subject to a post-community indivision and what previously constituted a common good, as is the case with the severance pay, is now a good personal of the spouse.
Having recalled these principles, the Court of Cassation quashed the appeal decision, the Court of Appeal having misjudged the estimated or foreseeable patrimonies of the spouses, both in capital and income, after the liquidation of the matrimonial regime, an essential criterion for determining the compensatory allowance pursuant to Article 271 of the Civil Code.
Indeed, since the termination pay was not a common asset but only part of the husband’s property, the wife may have been entitled after all to a compensatory allowance, this termination pay creating a disparity in the living conditions of the parties.