What does the duty of care between spouses consist of?

What is the duty of assistance between spouses?

Obligation born of marriage and framed by law (Article 212 of the Civil Code), the duty of assistance between spouses generates both a moral and financial obligation of one spouse to the other if the latter faces difficulties which prevent it from meet his needs. Spouses owe each other mutual respect, fidelity, help and assistance. No marriage contract can terminate the duty of assistance between spouses. The duty of relief between spouses not only consists of one or more payments of sums of money to the crisis-stricken spouse, it can also take the form of free housing or the supply of food.

But the spouses are not only bound by a maintenance obligation, the children are also bound to it in the face of their rising in need, and vice versa. This obligation includes even sons-in-law and daughters-in-law with respect to their in-laws.

It should be noted, however, that the maintenance obligation between spouses takes precedence over the maintenance obligation: the needy spouse must first be assisted by his or her spouse before being assisted by his or her descendants, if any. If the spouse himself is in difficulty, the children must respect the maintenance obligation with regard to their ascending.

Finally, during the divorce proceedings, and as long as the association is not legally dissolved, the judge can convert the duty of assistance between spouses into a grant of maintenance, or even by granting the distressed spouse free use of family housing. The duty to help is therefore a legal obligation that lasts as long as the marriage lasts. Once the divorce has been pronounced and the association has been finally dissolved, the maintenance obligation ceases. Unless compensatory benefit is granted to the spouse whose standard of living is obviously far below that of the one he had during the marriage.

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How is the duty to help between spouses expressed?

During the marriage, each of the spouses must contribute to current expenses in proportion to their respective financial ability. This means that as long as the two spouses are married and living in good harmony, the duty to provide assistance is not meant to apply because it exists naturally.

It is only in the event of financial difficulties of one spouse in the joint life, and when the association ceases, that the duty of assistance comes into place. If the inequality between each of the spouses’ assets at the time of separation is too great, the duty to provide assistance takes the form of financial assistance from the spouse who is doing best.

In practice, the family court judge awards maintenance under the duty of care in the following cases:

  • when one of the spouses during the marriage does not naturally contribute to current expenses despite his financial means;
  • always during the marriage, but this time when the spouses live separately and one of the spouses is in material and financial difficulty;
  • during the divorce proceedings pending the final judgment.

As a general rule, the amount of maintenance is determined amicably between the spouses, but it is often up to the family court judge to determine it. The latter take different criteria into account to determine the amount:

  • each of the spouses’ income and the difference between the two assets,
  • the respective professional situation of each of the spouses,
  • lifestyle during marriage,
  • the personal property of the spouses,
  • and above all the expenses of each of them, both current expenses and their indebtedness.

The amount of the contribution can be revised if the situation of the debtor or creditor changes positively or negatively. In this case, it is up to the family court judge to review this obligation between spouses.

>> Also read – What to do in case of non-payment of maintenance?

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