Article 237 of the Civil Code establishes a divorce mechanism based on an objective observation: the definitive alteration of the marital bond. No fault to prove, no mutual consent to obtain. The litigation then shifts towards the proof of separation and, increasingly, towards the financial consequences of the ruling.
Proof of separation: the real contentious ground of Article 238
Article 238 of the Civil Code conditions divorce for definitive alteration of the marital bond on a cessation of the community of life for at least one year prior to the date of the request. The principle seems simple. In practice, we observe that almost all disputes focus on the chronology and materiality of this separation.
The family court judge requires tangible evidence. Separate rent receipts, testimonies from relatives, bank statements showing separate domiciles, home insurance contracts at different addresses: everything converges towards demonstrating an effective break in the common life. A simple disagreement under the same roof is not enough, unless it proves a de facto separation within the marital home (separate bedrooms, total absence of shared life).
Recent decisions from the judicial court of Toulouse and the judicial court of Nîmes, rendered in July 2026, confirm this approach. The judges remind that the divorce is pronounced as soon as the separation is established based on Articles 237 and 238. The debate never concerns the consent of the defendant spouse: it focuses on the reality and duration of the separation.
To properly understand Article 237 of the Civil Code, it is essential to keep in mind that this basis was designed as a unilateral exit from marriage, independent of any fault.
Damages under Article 266: the growing financial litigation
The pronouncement of divorce for definitive alteration of the marital bond does not extinguish the question of compensation. Article 266 of the Civil Code allows the defendant spouse to obtain damages for consequences of particular severity suffered due to the dissolution of the marriage.
The Court of Cassation reaffirmed in a ruling on November 19, 2025, that this compensation is distinct from the harm related to the separation itself. It does not merge with a general remedy for the marital conflict. The spouse undergoing the divorce must characterize a specific harm linked to the ruling, not simply invoke the pain of the breakup.
This distinction has direct procedural implications. The relationship between Article 266 and Article 1240 of the Civil Code (common law liability) remains a regular point of friction. Article 266 covers the harm arising from the dissolution of the marriage. Article 1240 can be invoked for prior wrongful acts, independent of the divorce itself. Confusing the two bases weakens the claim.
What the judge concretely expects
The defendant seeking damages based on Article 266 must demonstrate three elements:
- A harm of particular severity, material or moral, directly caused by the break of the marital bond
- A causal link between the pronouncement of divorce and this harm, distinct from the ordinary consequences of any separation
- The absence of compensation for this harm by other mechanisms (compensatory allowance, liquidation of the matrimonial regime)
We recommend preparing this request as soon as the proceedings are initiated, with quantified documents and an argument separate from the request for compensatory allowance.
Connection with divorce for fault: counterclaim strategy
A spouse summoned for divorce due to definitive alteration of the marital bond can file a counterclaim for divorce for fault. This possibility, provided for by Article 245-2 of the Civil Code, alters the procedural dynamics.
The judge then examines both requests. If fault is established, the divorce may be pronounced at the exclusive fault of the initial petitioner, even though the one-year separation is confirmed. This shift changes the financial consequences, particularly access to damages and the conditions of the compensatory allowance.
The counterclaim strategy requires gathering solid evidence of fault (violence, adultery, serious breach of marital obligations) before the orientation hearing. A vague or late grievance will be dismissed.
Domestic violence and choice of basis
The issue of domestic violence increasingly intersects with the litigation of divorce for alteration of the marital bond. A victim of violence can choose between divorce for fault and divorce for alteration, depending on their evidentiary situation and priorities.
- Divorce for fault allows for recognition of the violence and obtaining a ruling at the exclusive fault of the violent spouse, with enhanced indemnity consequences
- Divorce for alteration avoids having to recount the violence in detail before the court, which may be preferable for psychological reasons
- Both bases can coexist: a primary request for alteration and a subsidiary request for fault, or vice versa
The choice of basis depends on the strength of the evidentiary file and the victim’s ability to face a contradictory debate on the facts of violence.
Separation period and 2019 reform: what has changed in procedure
Before the law of March 23, 2019, applicable from January 1, 2021, the separation period required to base a divorce on the definitive alteration of the marital bond was two years. This period has been reduced to one year, which has mechanically widened access to this procedure.
The reduction of the period has also modified dilatory strategies. Under the old regime, a spouse could hope to discourage the petitioner by dragging things out. With a one-year period, the maneuvering window is reduced. The defendant refusing the divorce can no longer rely on time as the main leverage.
The procedure takes place before the family court judge, by summons or joint request. Each spouse must be represented by a lawyer. The judge verifies the reality of the separation, rules on provisional measures (children’s residence, alimony, enjoyment of the housing) and then pronounces the divorce if the conditions are met.
Divorce for definitive alteration of the marital bond remains the only way for a spouse to obtain a divorce without the other’s agreement and without proof of fault. Its strength lies in its objective nature. Its difficulty lies in the rigorous evidentiary standards required by judges regarding the fact and duration of the separation.