Article 181 of the Civil Code defining the respective rights and duties of spouses is worded as follows:
"Spouses owe each other mutual fidelity, support, and assistance."
The duty of support is a legal obligation arising from marriage, which requires each spouse to support the other in case of need, as long as the marital bond subsists.
It may take two forms:
- Contribution to the expenses of the marriage during cohabitation: in the absence of specific provisions in their marriage contract, the spouses contribute to the expenses of the marriage in proportion to their respective means.
- Maintenance during a period of separation: this is a sum of money paid to a spouse, as a provisional measure during divorce proceedings, pursuant to a court order, in order to meet his or her essential needs.
More specifically, maintenance under the duty of support must not only cover the needs of the applicant spouse but also enable the spouse who is economically weaker to maintain the household’s standard of living to which he or she was accustomed.
Indeed, while the payment of maintenance primarily fulfils the duty of support and assistance owed by spouses to each other until the divorce is pronounced, it must also, within the limits of the other spouse’s means, allow for the maintenance of a standard of living equivalent to that which existed during cohabitation.
To set the amount of maintenance, the judge assesses the situation and the standard of living of the couple, then rules on a case-by-case basis.
The question then arises as to how the household’s standard of living would be assessed when the couple has been living apart for several years.
Indeed, when spouses have been living separately for a number of years at the time the divorce proceedings are initiated, it is acknowledged that cohabitation has not existed for some time, so that the criterion of a prior standard of living shared between the spouses could be significantly affected.
Judges will therefore assess the consequences of this separation in order to set the amount of maintenance.
