Determination of adultery by a judicial officer: what are the benefits within divorce proceedings?
Adultery is one of the common reasons for married couples to initiate divorce proceedings. Yet adultery is no longer an official ground for divorce since the law of April 27, 2007. It is only verified whether or not the marriage has been irretrievably disrupted, meaning that any form of cohabitation has become impossible. Nevertheless, proof of adultery remains relevant since it has an important benefit in the context of divorce proceedings.
How can you prove your spouse's adultery?
Many married couples suspect their partner's infidelity, but this is not sufficient evidence in divorce proceedings. Prospective ex-spouses will have to substantiate their suspicions through legal evidence e.g. emails, letters, photos, social media and so on. Another possibility is the special procedure of catching through a bailiff based on art. 1016bis Judicial Code. Before married couples can petition a bailiff for a "catch," they must obtain an authorization from the Court of First Instance of the district where the catch is to be made. One can draft the unilateral petition oneself, however, it is advisable to call on a lawyer who can assist you during the procedure. Then, the bailiff in the presence of police will go to the suspected place of infidelity between 5 am and 9 pm. If no one opens the door, the judicial officer has the authority to grant himself access to the residence with the help of a locksmith. Here he will make the necessary determinations: opening the cabinets, checking the presence of someone on the terrace or under the bed and so on.
What are the benefits of proving adultery?
Adultery, like assault and other acts of violence, allows the claimant spouse to faster real divorce. In fact, the divorce will then immediately be pronounced on the basis of Art. 229 §1 BW. If serious fault is not proven, the judge pronounces the divorce based on Art. 229 §2 or §3 BW. In case of a joint application can only do so when parties have already more than 6 months hold a separate stay. If this is not the case, a new hearing will follow on a date immediately following the expiration of the 6-month period or 3 months after the initiation hearing. In case of a unilateral request a deadline of 1 year of actual separation. Failure to meet this deadline will result in a new hearing after the expiration of the one-year term or one year after the initiation hearing.
A second consequence, often more important is of financial nature. Indeed, an adulterous spouse may no maintenance contribution claim from the economically stronger spouse this from the determination of the adultery. Thus, it may be important for the economically stronger spouse to prove the adultery before the divorce has become final.
What are the disadvantages, if any, of proving adultery?
Yet there are also a number of disadvantages to proving adultery during divorce proceedings. First, there is a high cost associated with it. You will have to pay the fees of both the lawyer and the bailiff. Moreover, there are also court fees, for the authorization of the Court of First Instance. Secondly, the special procedure of catching through the bailiff grants you no guarantee on a proof of adultery. Indeed, the judicial officer may not be able to establish the adultery because he is in the wrong location or because he is too late. In principle, a second determination under the same authorization is then allowed, but then you have the element of surprise already played out.
If you have any further questions regarding your divorce, please do not hesitate to contact us or leave a message on our website. Our attorneys will provide you with nuanced and clear advice with their expertise.
