Supreme Court of Appeal
Civil Division 2

Public hearing on February 8, 2001 Rejection

Appeal No.: 00-13366
titled Unreleased Chairman: Mr. Guerda Advisor

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


ON BEHALF OF THE FRENCH PEOPLE

THE COURT OF APPEALS, SECOND CIVIL DIVISION, made the following ruling:

The appeal brought by Ms X. ..,

to quash a decision of 5 November 1998 by the Court of Appeal of Paris (24th Civil Division, Section C) in favor of Y. ..,

defendant to appeal;

The plaintiff relies in support of its appeal, three grounds of appeal annexed to this Order;

THE COURT, under Article L. 131-6, paragraph 2 of the Code of Judicial Organisation in the hearing on January 10, 2001, which were present: Mr. Guerder, senior adviser acting for the President, Mr. Trassoudaine, Commissioner of rapporteur, Mrs Solange Gautier , consultant, Mr. Kessous, General Counsel, Ms. Claude Gautier, Registrar of room;

On the report of Mr. Trassoudaine, Commissioner of the observations of SCP Bouzidi, counsel for Ms. X. .. from Choucroy Me, Y. .. lawyer, the conclusions of Mr. Kessous, General Counsel, and after deliberated in accordance with law;

Whereas, according to the judgment (Paris, November 5, 1998), Ms. X. .. filed a divorce petition for breach of common life and her husband filed a counterclaim for divorce for cause;

The first plea:

Whereas Ms. X. .. complains that the decision to have the divorce of the spouses X. .. solely to blame and have rejected all his claims, then, by type:

1 / that the original petition for divorce for breach of common life is admissible only if it specifies the means by which the husband’s duty to provide aid and its obligations to children, holding that, to reject the means by which Ms. X. .. invited him to the irregularity of the request under Article 1123, that Ms. X. .. can not take advantage of irregularities it has itself created and can not be invoked by the opponent at the request of which the act was done, the Court of Appeal violated Article 1123 of new Code of Civil Procedure;

2 / Ms. X. .. argued that the petition filed on his behalf was unlawful under section 1123 of the new Code of Civil Procedure if it did not specify the means by which the husband will both during the proceedings after the dissolution marriage duty relief, the petition stated that “.. MY has one of wealth and also operates alone. Also, Ms. X. .. Y. .. offer compensatory allowance as the sum of one symbolic franc” , which results in that it did not specify the means by which the husband had to provide during the proceedings the duty of support, holding that the application contained a reference to the situation of children and the husband he was stated that since he enjoyed one of operated assets, Ms. X. .. offered a symbolic franc, to deduce that there is a qualified financial offer compensatory allowance for error, this procedure leaving the duty of support, the Court of Appeal did not draw the legal consequences of his s’évinçant own findings which showed that the request did not specify the means by which the husband intended to ensure that during the proceedings and after the divorce his duty relief in respect of the other spouse, and thus violated Articles 1123 the new Code of Civil Procedure and 239 of the Civil Code;

3 / Ms. X. .. alleged irregularity of the request did not specify the means by which the husband was to ensure the dissolution of marriage duty relief, the petition stated only that “.. MY has one of wealth and also operates only. Also, Ms. X. .. Y. .. offer compensatory allowance as the sum of one symbolic franc “;

it was therefore not reported on the performance of a duty of support, no indication being given heritage as the head of the petitioner that the defendant spouse, however, that in deciding this request was regular since it stated that the husband enjoyed only heritage he operated, the wife with a symbolic franc, that there was indeed a financial offer qualified compensatory allowance for error, this procedure leaving the duty of support, the Court of Appeal misconstrued the application made no mention of a duty of support and violated Article 1134 of the Civil Code;

4 / inadmissible what the initial request for divorce for breach of common life merely states that children are adults, the motion says “the children of the union of husband’s major”, that in considering this request admissible, it contained a reference to the situation of children, however, that no reference was made to their situation, if not the major indication that they were, the Court of Appeal misconstrued the request and violated Article 1134 Civil Code;

But It is clear from Article 122 of the new Code of Civil Procedure constitutes a procedural bar to any means which tends to make the opponent declare inadmissible the application, without consideration of the merits for failure of the right act, as in a divorce sought for breach of common life, the lack of precision in the initial request, the means by which the husband’s duty to provide aid and its obligations to children, is one end of inadmissibility that can not be invoked by the person making the request;

It is therefore with good reason, that the Court of Appeal ruled that Ms. X. .. can not take advantage of irregularities it has itself created and can not be invoked by the opponent at the request of which the act was done;

Hence it follows that the plea is unfounded in all its branches;

The second plea:

Whereas Ms. X. .. complains that the decision to have the divorce solely to blame, while Ms. X. .. the alleged lack of consent affecting the petition for breach of common life, Ms. X. ..indicating that the choice to have ignored this procedure destroys forever any right to alimony and matrimonial advantages, by the terms of the request Ms. X. .. providing a fair compensatory allowance and seeking support; saying that Ms. X. .. can not rely on lack of consent when it initiated proceedings in breach of its legal effect as the act instituting the proceedings required only in accordance with Article 489 of the Civil Code to be sane, that Ms. X. .. had its full legal capacity, she was assisted by counsel, she has initiated this process after a long separation of husband and then a cooling off period, it was his first to be informed of the consequences of choice of a proceeding under section 237 of the Civil Code to conclude that the medium is irrelevant and will be rejected, the appeal court which decides on grounds irrelevant, disregarding whether the query terms not caused an error, does not legally justified its decision with respect to Articles 1109 and following of the Civil Code;

But given that Articles 1109 and following of the Civil Code, relating to the conditions essential to the validity of contracts, have no application to the unilateral act that constitutes the petition for breach of common life;

Hence it follows that the plea is ineffective;

The third plea, as shown in the appendix:

Whereas Ms. X. .. complains that the decision to have the divorce solely to blame and have rejected all his claims;

But whereas, under the guise of a violation of Article 455 of the new Code of Civil Procedure, the medium tends only to revive discussion before the Court of Cassation the sovereign appreciation by the Court of Appeal, which n ‘ was not required to enter into the details of the parties’ arguments, scope and value of evidence of the wrongful nature of the allegations against the wife and the lack of “forgiveness” of the husband;

Hence it follows that the ground can only be removed;

FOR THESE REASONS:

Dismiss the appeal;

Condemns Ms. X. .. the expense;

Well done and tried by the Court of Appeals, Second Civil Chamber, and pronounced by the President in a public hearing on 8 February two thousand and one.

 


Contested decision: Court of Appeal of Paris (24th Civil Division, Section C) 1998-11-05

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